Kevin Jerome Tate, Appellant, vs. State of Minnesota, Respondent. C9-01-2117, Court of Appeals Unpublished, April 23, 2002.
Appellant challenges his sentence for felon in possession of a firearm, arguing that the sentencing court abused its discretion in imposing an executed sentence that departed downward in duration but not in disposition when the court made findings that could have supported a downward dispositional departure. We affirm.
On August 15, 2000, appellant Kevin Tate had been drinking and got into a fight with his girlfriend, Shannon Kochendorfer. He became physically abusive, and Kochendorfer left the apartment. Shortly thereafter Kochendorfer returned to the apartment with a group of people. Appellant heard her and the others knocking to be let in but did not recognize the voices of the other people with Kochendorfer. Before opening the door, appellant grabbed a gun owned by and registered to Kochendorfer. Once he opened the door and saw police officers with Kochendorfer, he immediately dropped the gun and complied with all their orders.
Appellant was arrested for domestic assault. The police later discovered that appellant was convicted of aggravated robbery in 1989 and, as a result, is prohibited from possessing a handgun. Accordingly, appellant was charged with and pleaded guilty to felon in possession of a firearm under Minn. Stat. § 624.731, subd.1(b) (2000). During his plea negotiations no agreement regarding his sentence was reached. At the sentencing hearing the court departed durationally from the mandatory-minimum sentence of 60 months and sentenced appellant to 40 months in prison. The court stated that it also considered departing dispositionally by placing appellant on probation. It made a detailed record of all the mitigating circumstances that supported a dispositional departure but ultimately decided based on the complete record, including information from appellant's prior felony, not to place appellant on straight probation but to give him a reduced prison sentence. Appellant now challenges the sentencing court's decision not to dispositionally depart downward.
Appellant argues the sentencing court abused its discretion in imposing an executed sentence that included a downward durational departure but not a downward dispositional departure. Appellant argues that, despite the sentencing court's findings that mitigating factors existed to justify departing dispositionally, the court arbitrarily imposed a prison sentence instead of probation.
A sentencing court "has broad discretion to depart only if aggravating or mitigating circumstances are present." State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). If such circumstances are present, an appellate court reviews a sentencing court's decision to depart for an abuse of discretion. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). Even where a sentencing court appropriately exercised its discretion, such discretion is not boundless and this court will interfere where it has "a strong feeling the sentence is inappropriate to the case." State v. Law, 620 N.W.2d 562, 565 (Minn. App. 2000) (quotation omitted), review denied (Minn. Dec. 20, 2000).
the defendant's age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family are relevant to a determination whether a defendant is particularly suitable to individualized treatment in a probationary setting.
State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
Appellant's previous felony conviction stemmed from an aggravated robbery where the victim was shot and killed. Appellant, however, was not at the scene of this crime and did not personally use or possess a gun in the commission of the crime. Therefore the sentencing court had the discretion to depart from the mandatory minimum sentence. See Minn. Stat. § 609.11, subd. 8(a), (b) (2000) (stating on state's motion or its own motion, the court may sentence defendant without regard to mandatory minimum sentence if substantial and compelling reasons exist unless defendant was previously convicted of offenses listed in statute (including aggravated robbery) in which defendant used or possessed a firearm or other dangerous weapon).
A conviction of felon in possession of a firearm carries a presumptive sentence of "not less than five years." Minn. Stat. § 609.11, subd. 5(b) (2000). The sentencing court made a thoughtful analysis and chose a downward durational departure of 40 months because the presumptive sentence was, in the sentencing court's view, wholly disproportionate to appellant's situation.
Appellant correctly asserts that the sentencing court listed several factors that could have supported sentencing appellant to probation rather than prison. The mitigating factors could have related to either a durational or a dispositional departure. For example, the court cited the facts that appellant may not have ever touched his girlfriend's gun before he had it in hand at the time of his arrest, appellant was not fully awake or fully sober when he took his girlfriend's gun and answered the door with it, appellant dropped the gun as soon as the police told him to do so, appellant is willing to accept chemical-dependency treatment, and appellant has a support system in his girlfriend and young son.
I think that there are some mitigating circumstances that do justify a durational departure from the sentencing guidelines, but based upon the complete record of this case, including the supplement that I got from the Department of Court Services, I just can't bring myself to put the defendant on probation.
A sentencing court is allowed discretion to depart if mitigating factors are present. It does not follow that if mitigating factors are present, the court must depart. The rule states that the court may depart. The record demonstrates the sentencing court thoroughly and thoughtfully reviewed the circumstances of appellant's case before making its decision to shorten appellant's prison time but not to utilize straight probation. This discussion does not demonstrate an arbitrary exercise of authority, but rather demonstrates a considered and rational approach by the judge to his authority to sentence. Like Diogenes, the court, seeking the perfect sentence, split the baby and opted for a shorter sentence (downward durational departure) rather than a downward dispositional departure.
The sentence was not exactly to appellant's liking, but the record does not come close to supporting an inference that the sentencing court was arbitrary when it declined to impose a downward dispositional departure.
 The initial complaint indicated a conviction in Arkansas of felony burglary on February 28, 1989. The plea hearing transcript indicates the 1989 conviction to be for felony aggravated robbery. There is no issue. The parties agree that appellant has the necessary predicate felony for his conviction.


Some judges continue to hold themselves above the law - but they are not beyond accountability.
DID YOU KNOW that you have the right to vote "NO" on these unjust justices (and judges at all levels)?
It's true – judges - even Supreme Court justices - in Colorado ARE accountable to the people. Every two years, voters in Colorado have the opportunity to render their judgement on a portion of our appointed judiciary in "retention" elections ("should they stay, or should they go?" What makes a good judge?) YOU, the voter, get to decide - they NEED YOUR APPROVAL to be retained on the bench.
Do you Know Your Judge appearing on the 2016 Ballot?
As Coloradans enjoy the last month this 2016 election year before being bombarded with political ads and mailers, MOST voters have little to no information on up to a third of the people asking for their vote: our state’s 3rd Branch of government, the judges.
Unfortunately, the official, government-sanctioned incumbent-protection “performance reviews” produced by the state’s Commissions on Judicial Performance (published and disseminated, at significant taxpayer expense, in the “Blue Book”) fail to provide much (if any) substance behind the published “recommendations” (almost uniformly in favor of “retaining” judicial incumbents in office).
The Blue Book “reviews” are thus little more than (taxpayer-funded) political ads for incumbents.
A recent Denver 9News (NBC) story, “Colorado judges win elections despite bad reviews” converted the “official” performance review survey results into letter grades for each of the 108 judges appearing on the 2016 ballot. Amazingly, just like Lake Woebegone, all of the judges were graded “above average” (letter grades ranging from a high of “A-” to a low of “B-” with the vast majority receiving a “B+” grade).
There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters.
If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do. Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations. Some commentators and observers have denigrated the narratives as a “rubber stamp” exercise for retaining judges.
In any event, why do we have political appointees (commissioners are appointed by the governor, attorney general, state legislators and the Chief Justice of the Colorado Supreme Court – the latter certainly seeming to have a conflict of interest) telling Coloradans how to vote?
Colorado voters deserve better information on these unelected officials, who (usually with little notice) exert enormous influence over their lives. For a 4th straight election cycle, Clear The Bench Colorado is researching and evaluating the performance of the appellate court (statewide) judges appearing on the 2016 ballot (1 Supreme Court justice, 10 Court of Appeals judges), collected inputs on district and county judges from around the state, and will publish this information in an easy-to-read “scorecard” format as a resource for Colorado voters.
Five years ago today, the Denver-based Institute for the Advancement of the American Legal System (IAALS) – “a national, non-partisan organization dedicated to improving the process and culture of the civil justice system” – hosted a National Conference on Evaluating Appellate Judges (on 11-12 August 2011) at the University of Denver (Sturm Hall, 2000 E. Asbury Avenue, Denver CO 80208).
The Colorado Court of Appeals rejected legal arguments filed by Colorado Ethics Watch (a state subsidiary of the Washington D.C. -based ‘Citizens for Responsibility and Ethics in Washington‘, or CREW) challenging the Colorado Republican Party’s establishment of a supposedly “independent” SuperPAC (Colorado Republican Party Independent Expenditure Committee, or ‘CORE IEC’) allowing the party to circumvent contribution limits otherwise applying to political parties.
Such “coordination” between the party and the IEC remains illegal, according to the ruling (Ruling at 9-13); however, because the legal challenge was “facial” (based entirely on theoretical application of the law) rather than “as-applied” (based on evidence of actual activity or conduct), the court did not review or consider any evidence or history of the IEC’s actual activities (more on that later).
Following the passage of Amendment 27 in 2002 (enacted as Article XXVIII, Colorado Constitution), contribution limits have applied to organizations supporting or opposing candidates in state elections –including political parties. Under current Colorado law, political parties may accept a maximum of $3,400 per year (state, county, local levels combined) in aggregate (total) contributions from any individual – and are prohibited from receiving contributions from corporations or labor organizations (unions).
The CORE IEC was formed at the specific direction of former COGOP Chairman Ryan Call (who publicly bragged that the IEC was his personal “brainchild”) and initially registered with the Secretary of State on 7 May 2014. Ryan Call filed a lawsuit in the name of the Colorado Republican Party in Denver District Court the next day seeking a ruling (Petition for Declaratory Order) “blessing off” on the IEC’s existence. Even before the District Court issued its decision, the CORE IEC collected (and spent, mostly to pay Executive Director Tyler Harber) tens of thousands of dollars – money that, had the party lost its challenge, would have subjected both the party and the donors to penalties of 2-5X the amount each contribution exceeded the limit ($3,400) applying to political parties.
The District Court ruled in September that, so long as the CORE IEC did not coordinate activity or spending with the Colorado Republican Party (inclusive officers, including Chairman Call) that it could be established and operate as an independent entity. The District Court (as, later, the Court of Appeals) relied almost exclusively on the representations of the IEC’s Bylaws – holding that the bylaws provided sufficient separation (and “firewalls”) against coordination.
CEW filed an appeal of the District Court’s decision on 6 October 2014 – seeking to overturn the judgment on purely facial (theoretical) grounds rather than seek to prosecute the IEC for “as-applied” violations of campaign finance law (including the “coordination” issue). The case dragged through the Spring and into the Summer of 2015 (during which time it became a hot potato in internal party politics), before ultimately leading to yesterday’s ruling.
Meanwhile, the CORE IEC was successfully prosecuted for violations of state campaign finance law – along with a dozen-odd big-money donors, when the IEC failed in its above-cited obligations to “assist donors to the IEC to fulfill their reporting requirements” – in a series of complaints filed in late 2014 (resulting in a ‘guilty plea’ entered by COGOP Chairman Ryan Call on behalf of the IEC) and early 2015 (again resulting in a stipulated judgment against the CORE IEC negotiated and authorized by the new COGOP Chairman Steve House). Part of that settlement agreement negotiated by COGOP Chairman House included a commitment to terminate the CORE IEC within 150 days – or pay a suspended penalty of $23, 125 as mandated by statute. The state party (and Chairman House) along with the IEC have failed to honor that obligation.
Additionally, a dozen deep-pocketed Colorado Republican donors have been assessed penalties for failing to “fulfill their reporting requirements under the independent expenditure statute” (thanks to the failure of Ryan Call and the IEC to “assist” the donors in fulfilling their legal obligations) – including such luminaries as former Colorado Governor Bill Owens, along with former IEC managing board member Keven Kauffman, to name just a few of the most prominent – although the party actually paid the penalties on behalf of the donors.
Furthermore, the IEC does in fact “retain or utilize any common consultant or common vendor with the Colorado Republican Committee” – namely, the same campaign finance management firm, the Utah-based McCauley & Associates PC (owned and operated by former Utah Republican Party Treasurer Mike McCauley) – who took over as the CORE IEC’s Registered Agent and Designated Filing Agent on 9 February 2015 from the departing Tyler Harber, who entered a guilty plea for federal felonies a few days later (12 February 2015) – ironically, for illegal campaign coordination.
Consequently, although the CORE IEC (and its sponsor, the Colorado Republican Party) can celebrate a court victory – they’re not out of the woods just yet.
Clear The Bench Colorado generally opposes the imposition of contribution limits or other restrictions on free speech in the civic and political arena (see, Speaking Out on Reforming Colorado’s Campaign Finance Laws) as unconstitutional abridgments of the 1st Amendment; in particular, the excessively complex and convoluted nature of campaign finance laws in Colorado challenge the Constitution, chill free speech, and curtail civic participation. Any such laws that do remain in effect, however, must be fairly and equitably applied to everyone – with no “special exemptions” for favored entities. It is our view that the CORE IEC is an attempt to create just such a “special exemption” and violates the spirit (and, if “coordinating” activities) letter of the law.
The Supreme Court of the United States (SCOTUS) kicked back a challenge to Colorado’s Taxpayer Bill of Rights (TABOR) constitutional amendment (Article X, Section 20) to the 10th Circuit Court of Appeals, vacating the 10th Circuit’s previous judgment and remanding the case for further consideration in light of the Supreme Court’s recent ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U. S. (2015).
The frivolous, groundless, and politically-motivated lawsuit attempting to overturn a Colorado Constitutional Amendment (the Taxpayer’s Bill of Rights, colloquially known as “TABOR”) was initially filed in Federal court in May 2011 – and, after several rounds of motions and counter-motions, allowed to proceed to trial in July 2012 (despite clear constitutional precedent disallowing challenges based on the “Guarantee Clause”) prior to the interlocutory appeal filed with the 10th Circuit. After a 3-judge panel on the 10th Circuit ruled that the case could proceed, and a requested en banc hearing was rejected, albeit with several strong dissents) by the court, the case was appealed to the U.S. Supreme Court before being sent back earlier today.
the electorate shares lawmaking authority on equal footing with the Arizona Legislature. The voters may adopt laws and constitutional amendments by ballot initiative, and they may approve or disapprove, by referendum, measures passed by the Legislature. Ariz. Const., Art. IV, pt. 1, §1. “Any law which may be enacted by the Legislature . . . may be enacted by the people under the Initiative.” Art. XXII, §14.
As Clear The Bench Colorado noted at the very outset of this litigation, the two relevant SCOTUS cases on the “Guarantee Clause” have held the “Republican form of government” language to be non-justiciable.
In Luther v. Borden, 48 U.S. 1 (1849), the Supreme Court rejected an attempt to put the “republican character” of state government subject to judicial review, holding that “it rests with Congress to decide what government is the established one in a State … as well as its republican character.” The court, properly exercising judicial restraint, held the “Guarantee Clause” to be a political question, not a judicial one – and therefore not subject to review by the courts (i.e. non-justiciable).
Id. art. V, § 1 (“The legislative power of the state shall be vested in the general assembly . . . but the people reserve to themselves the power . . . at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.”).
The attorneys general of Texas, Idaho, Arizona, Indiana, Ohio and Wyoming submitted an amicus brief to the Supreme Court in support of Colorado’s defense against the lawsuit.
If “We The People” cannot set constitutional limits on government power, then the very founding principles of this nation – indeed, the foundations of Liberty itself – are at risk.
A more detailed (and highly informative) discussion of the constitutionality of the citizen initiative and referendum processes may be found in the Texas Law Review article, “A Republic, Not a Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause” by Professor Robert G. Natelson.
The Colorado Supreme Court, in a stunning reversal of the Colorado Court of Appeals ruling from February 2013, declared the Douglas County School Choice Voucher Program a violation of the Colorado Constitution, in a ruling released earlier today (Monday, 29 June 2015).
The unusual plurality ruling (essentially, a 3 +1 vs. 3 judgment) in the case (13SC233, Taxpayers for Public Education v. Douglas County School District) split along the issues of whether the plaintiffs even had standing to bring the case on statutory grounds (a 6-1 majority held that they did not) and on whether the Choice Scholarship Program (CSP) violated the Colorado Constitution, Article IX Section 7 (prohibiting expenditure of public funds “to help support or sustain” certain schools). Three of the Colorado Supreme Court justices (Chief Justice Rice, Justice Hobbs and Justice Hood) held that the CSP violated the Colorado Constitution; one (Justice Marquez) held that the CSP violated the School Finance Act on statutory grounds, and joined in the judgment. Three justices (Justice Eid, joined by Justice Boatright and Justice Coats) agreed that the plaintiffs lacked standing on statutory grounds, and disagreed that the CSP was in violation of the Constitution.
The legal battle over the constitutionality of the Douglas County “Choice Scholarship Program” – which allows K-12 students who reside in the Douglas County School District and have been enrolled in a Douglas County public school for at least one year to apply for a Choice Scholarship to attend the private or charter school of their choice – has gained national attention as the “ground zero” in the fight for school choice across the country.
Justice Marquez also held that the CSP violated the School Finance Act on statutory grounds alone, and thus would not rule on the constitutional issues, ensuring that only a plurality (rather than an actual majority) held the CSP in violation of the Colorado Constitution, concurring in the judgment only.
A mere plurality of three justices – Chief Justice Nancy Rice, retiring Justice Gregory Hobbs, and recently-appointed Justice William Hood III – held the Choice Scholarship Program violates the Colorado Constitution (specifically, Article IX Section 7 Aid to Private Schools, Churches, Sectarian Purpose, Forbidden).
As a side note: Clear The Bench Colorado raised the issue of a potential conflict of interest with Hood ruling in cases brought by his former law partner, Marc Grueskin, at the time of Hood’s appointment to the Colorado Supreme Court by Governor Hickenlooper. Grueskin was the attorney for amicus curiae National Education Association in this case, which should have at least raised the potential for Hood’s recusal, in whole or part, from the proceedings. Not that ethical considerations hold much weight in Colorado courts.
Americans United Grant Program Distinguishable?
The plurality proceeded to note a number of other distinctions between CSIP (the college grant program at issue in Americans United) and the CSP, from the obvious (CSIP is for college, while CSP is for primary education) to the irrelevant (CSIP includes grants for tuition at public universities, a condition that does not apply to public primary schools) to the programmatic (CSIP bars reduction of college funds spent on students to offset grant money, while CSP has no explicit prohibition on offsets) to, finally, conditions on a university governing board’s membership (applying under CSIP, but not a CSP requirement).
First Amendment Issues Inapplicable to Choice Scholarship Program?
Similarly, the plurality held that previous federal First Amendment case law applying to school choice programs – specifically, the 2002 U.S. Supreme Court Zelman case and the 2008 10th Circuit Colorado Christian University v. Weaver case – are not “availing” in this case.
As occurs far too often in Colorado jurisprudence, to find the law one must read the dissent. Justice Allison Eid authored a strong dissent, joined by Justices Boatright and Coats.
Most importantly, Justice Eid notes that “Americans United mirrors long-standing Establishment Clause doctrine, under which a program “of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals” is “not readily subject to challenge” because the “circuit between government and religion [has been] broken.” Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002).
Indeed, as Justice Eid suggests, such an expansive interpretation would readily lead to the absurd result that any expenditure of public funds whatsoever – including, as noted above, any public infrastructure such as roads or bridges which could indirectly benefit such institutions – would be prohibited.
Plaintiffs failed to carry their burden of proving the unconstitutionality of the CSP beyond a reasonable doubt, or by any other potentially applicable standard. None of them have standing to assert a claim under the Act. Accordingly, the district court’s judgment cannot stand.
The Colorado Supreme Court plurality stretched the prohibitions on government spending to “support or sustain” sectarian schools past the point of absurdity; applying the same logic found in their ruling, every conceivable expenditure of public funds could be challenged on the basis of providing “incidental or indirect” support to sectarian schools (which could certainly make for interesting fodder for anyone opposing any given state government program).
Sadly, this latest Colorado Supreme Court ruling reaffirms the court’s status as a judicial hellhole lacking respect for the rule of law and the constitutional rights of Colorado citizens.
Colorado Governor John Hickenlooper announced his pick for the next Colorado Supreme Court Justice Tuesday afternoon, 23 June 2015: Colorado Court of Appeals Judge Richard L. Gabriel, who will succeed retiring Justice Gregory Hobbs effective 1 September 2015.
Governor Hickenlooper had until this Thursday to announce his selection from among the three finalists (Judge Gabriel, Judge Prince, and University of Colorado Law Professor Melissa Hart) nominated by the state judicial nominating commission, according to the timeline set forth under the Colorado Constitution.
Judge Gabriel has served on the Colorado Court of Appeals since his 30 April 2008 appointment by former Governor Bill Ritter; he was most recently retained in office in 2010 (Clear The Bench Colorado had no recommendation on his retention at that time, as the record on his performance was limited due to few rulings in his short time on the court).
Judge Gabriel appears to be a consensus compromise pick by Governor Hickenlooper; according to the Denver Post and the Denver Business Journal, the Colorado Association of Commerce and Industry (CACI) and other business interests had lobbied for Prince’s appointment, along with the Colorado Springs Gazette’s editorial board; while “progressives” lobbied for Leftist law professor Melissa Hart.
According to Clear The Bench Colorado sources in the legal community, Judge Gabriel is generally well-regarded, and considered a capable appellate court judge. He is considered approachable, reasonable, thoughtful and thorough in his legal opinions. Some sources have opined that Judge Gabriel, although well versed in various aspects of statutory application, is not among the more strict constructionists on constitutional issues (which is, perhaps unfortunately, not atypical of a majority of judges and lawyers).
Judge Gabriel was considered a consensus-builder during his time on the judicial liaison committee, and has worked well with various commissions interfacing with the judicial branch.
On a personal note (not to toot his own horn), Judge Gabriel plays trumpet (for fun) and has kept in practice.
Although Judge Gabriel has authored only a few published opinions, some of those have been particularly noteworthy. He wrote the opinion in the Colorado Ethics Watch v. Senate Majority Fund case, perhaps the most important ruling on campaign finance law (particularly, the issue of “express advocacy” in regulation of political speech), rejecting CEW’s attempt to expand the definition of “express advocacy” to include the “functional equivalent” thereof. Judge Gabriel also wrote a special concurrence in the Gray v. University of Colorado Hospital Authority case, which affirmed public entity immunity from liability for tort claims based on allegations that the entity or the entity’s employees acted in a willful and wanton manner.
Our View: Judge Gabriel is likely to be a fairly middle-of-the-road jurist, who will likely contribute to a significantly more impartial and balanced Colorado Supreme Court (the court has advanced leaps and bounds from the blatantly partisan “Mullarkey Majority” days from as recently as five years ago). Clear The Bench Colorado looks forward to providing more detailed analysis of Judge Gabriel’s performance on the Colorado Supreme Court over his “probationary term” prior to his scheduled retention vote in 2018.
Citizen participation in the judicial review and retention process (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to judicial office, instead of more politicians in black robes.
This is particularly important at the appellate court level – many of whom all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.
Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our judges are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.
Bottom Line: an informed citizenry and active citizen participation is vital in restoring accountability and transparency to the 3rd branch of state government, the judicial branch.
The Colorado Supreme Court Judicial Nominating Commission has named the three finalists to succeed retiring state supreme court justice Gregory Hobbs (his retirement is effective 31 August 2015).
The Supreme Court Nominating Commission met in Denver on June 8 and 9, 2015, to interview and select three candidates for a vacancy on the Colorado Supreme Court created by the retirement of the Hon. Gregory Hobbs, Associate Justice of the Colorado Supreme Court. The vacancy is effective 31 August 2015. The nominees are Richard L. Gabriel, Melissa Hart and David Prince.
Under the Colorado Constitution, the governor has 15 days from June 10, 2015, within which to appoint one of the nominees as a justice on the Colorado Supreme Court.
Comments regarding any of the nominees may be sent via e-mail to the governor at gov_judicialappointments@state.co.us.
Judge Prince was also a finalist to succeed retiring former chief justice Mary Mullarkey in 2010; he was profiled by Denver Post courts reporter Felisa Cardona (“Colorado Supreme Court finalist Prince applies diligence to his cases – and his barbecue“) in an article appearing 4 September 2010. He was again a finalist to succeed retiring former chief justice Michael Bender in 2012. Perhaps the third time will be the charm for Judge Prince?
The Law Week Online article, “Finalists Announced for CO Supreme Court Vacancy” (10 June 2015) summarizes additional background information on the three finalists.
Unfortunately, Colorado citizens know more about the process of picking the Pope than about how our state selects nominees to judicial office.
This is unfortunate – because, despite some flaws (most importantly, a lack of transparency and public accountability – secrecy encouraged by the legal establishment, who are more interested in protecting their members and covering for their ‘buddies on the bench’ than allowing them to be called to account), the process does provide some level of front-end vetting of judicial applicants, filtering out the obviously unqualified and excessively partisan (weeding out the ‘worst of the worst’).
So, how does the Supreme Court Nominating Commission try to make ‘better choices’ for replacing outgoing justices?
On announcement of the vacancy and solicitation for application, prospective nominees submit an extensive application packet (including a long questionnaire, writing sample, background information, resume of relevant professional experience, and references).
Commission members review the applications, and select from the total list (this year, 31 people applied for the impending vacancy) for interviews (a particular candidate will be interviewed if any commissioner expresses a strong desire to have them appear). Commissioners consider the current makeup of the court, and may advocate for a specific constituency – a particular area of legal expertise – such as water or business law, or possibly a regional or ethnic representation in pursuit of court ‘diversity’). Interviews are based on a common set of ‘core’ questions (for consistency of comparison & evaluation); each commissioner develops and uses their own evaluation criteria.
Following interviews, the commission deliberates/discusses the candidate, voicing comments or concerns to the group at large.
Following all of the interviews, the commission casts a ballot – three unranked votes per opening (for the Colorado Supreme Court or Court of Appeals – lower courts may only require 2-3 nominees). The top vote-getters become the finalists – with the caveat that any finalist MUST receive a majority of total Commission votes (i.e. 8 of 15), irrespective of how many are actually present. Multiple ballots may be (generally are) necessary. (Note that the current makeup of the Nominating Commission – 7 Democrats, 5 Republicans, 3 Unaffiliated – ensures that any finalists MUST receive at least one vote from multiple party affiliations).
The names of the three finalists are submitted for consideration by the governor, who has 15 days to make a selection from the list.
ALL of our sources (from differing party backgrounds) have stressed that the Nomination Commission deliberations are non-partisan (which is not to say, as our sources admit, that the deliberations and considerations do not reflect ideology or judicial philosophy – which is, in our view, entirely appropriate).
Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to judicial office, instead of more politicians in black robes.
This is particularly important in selecting the next statewide appellate court judges – many of whom all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.
Our view: an informed citizenry and active citizen participation is vital in restoring accountability and transparency to the 3rd branch of state government, the judicial branch.


text:
Recognized as a Senior Statesman for Appellate Litigation in Minnesota by Chambers USA 2018.
David Herr, a member of Maslon's Litigation Group, is a highly regarded appellate lawyer and complex case litigator. He is frequently sought out to provide practical and sophisticated advice on how to resolve difficult, multi-party disputes in trial courts and arbitral forums as well as in the appellate courts.
David is past president of the American Academy of Appellate Lawyers, past president of the Academy of Court Appointed Masters, and regularly argues cases in the Minnesota appellate courts and the Eighth Circuit Court of Appeals. He annotates the Federal Judicial Center's Manual for Complex Litigation, published and distributed nationally by Thomson West.
million-dollar dispute arising from the refinancing of a commercial development project.
Curtis v. Altria Group, Inc. and Philip Morris, Inc., A10-0215 (Minn. 2012). The Supreme Court rejected an effort by plaintiffs to bring a private class action for damages under the Minnesota Consumer Fraud Act following litigation and settlement of claims by the Attorney General.
McCaughtry v. City of Red Wing, 808 N.W.2d 331 (Minn. 2011). The Supreme Court held that a challenge to the constitutionality of a rental inspection ordinance presented justiciable controversy. Maslon represented friends of the Court whose position was adopted by the court.
U.S. Bancorp v. Mitgang, No. A09-1472 (Minn. Ct. App., June 1, 2010). Obtained reversal of decision misconstruing recourse agreement in conjunction with multiple loans.
Brayton v. Pawlenty, 781 N.W.2d 357 (Minn. 2010). Counsel for amici curiae providing constitutional law support for Governor in high-profile "unallotment" decision.
Savig v. First Nat'l Bank of Omaha, 781 N.W.2d 335 (Minn. 2010). Established standard for garnishment of jointly owned accounts, resolving persistent problem for creditors.
In re Kaiser Aluminum Corp., 350 Fed. App’x 775 (3rd Cir. 2009). Argued and won affirmance of $400,000,000 decision in bond indenture case.
Clifford L. Whitaker, et al. v. 3M Co., 764 N.W.2d 631 (Minn. Ct. App. 2009). Established standards for obtaining class certification (counsel for Minnesota Chamber of Commerce, amicus curiae).
Otter Tail Power Co. v. Surface Transportation Board, Nos. 06-1962 & 06-2412 (8th Cir. 2007). Appellate challenge to massive rate proceeding before Board involving construction of interstate railroad.
OneBeacon Ins. Co. v. A.P.I., Inc., No. A06-1229 (Minn. Ct. App.). Appellate counsel to respondent on appeal from $60 million insurance coverage judgment.
Commandeur LLC v. Howard Hartry, Inc., 724 N.W.2d 508 (Minn. 2006). Won reversal of dismissal of appeal for untimeliness due to court of appeals failure to recognize holiday.
Jaenty, Inc. v. Northern States Power Co., A04-901 (Minn. 2006). Won affirmance of appellate court decision affirming dismissal of actions relating to gas explosion on statute-of-limitations grounds; argued on behalf of several separately represented respondents.
Antone v. Mirviss, 720 N.W.2d 331 (Minn. 2006). Appellate counsel for Minnesota Lawyers Mutual as amicus curiae in case involving novel interpretation of Minnesota's statute of limitations for malpractice actions arising from drafting of antenuptial agreements.
State of Minnesota v. Philip Morris USA, Inc., 713 N.W.2d 350 (Minn. 2006). Appellate counsel on unsuccessful challenge that health impact fee of 75 cents did not violate 1998 settlement agreement between state and cigarette manufacturers and distributors.
MedCam, Inc. v. MCNC, 414 F.3d 972 (8th Cir. 2005). Court declined to reverse district court order compelling arbitration.
Afremov v. AGA, numerous reported and unreported decisions. This shareholder dispute involved appellate proceedings arising from a single trial court action, applications for extraordinary writs, discretionary appeals, interlocutory appeals as of right, and petitions for further review by the Minnesota Supreme Court of numerous Court of Appeals decisions. The Maslon appellate team prevailed in all of these except one ancillary award of sanctions that was reversed by the court of appeals after the case had settled on all merits issues.
Triple Five of Minnesota, Inc. v. Simon, 404 F.3d 1088 (8th Cir. 2005). Won partial reversal in case involving complex claims of ownership and partnership rights in Minnesota's Mall of America.
Tuttle v. Lorrilard Tobacco Co., 344 F.3d 753 (8th Cir. 2005). Affirming dismissal of variety of tort claims.
Broek v. Park Nicollet Health Services et al., 660 N.W.2d 439 (Minn. Ct. App. 2005). Obtained reinstatement of medical malpractice claim following dismissal on statute of limitations grounds.
Roehrdanz v. Brill, 682 N.W.2d 626 (Minn. 2004). Obtained reversal of court of appeals decision on proper method of service of notice of removal.
Schumacher v. Tyson Fresh Meats, Inc., (8th Cir. 2004). Obtained affirmance of class certification in expedited appeal under Fed. R. Civ.
Seed v. Astra Genstar P'ship, 2003 WL 178790 (Minn. Ct. App. 2003).
Barbara Grutter v. Lee Bollinger, et al., and Jennifer Gratz and Patrick Hamacher v. Lee Bollinger, et al., 188 F.3d 394 (6th Cir. 1999), aff'd 123 S. Ct. 2411 (2003), intervention appeal, 288 F.3d 732 (6th Cir. 2002), rev'd, 123 S. Ct. 617 (2003) (two companion civil rights class actions).
In re Silicone Implant Ins. Coverage Litig., 652 N.W.2d 46 (Minn. Ct. App. 2002), aff'd in part, 667 N.W. 2d 405 (Minn. 2003). Insurance coverage litigation and appeals involving over 100 parties.
Todd v. Ortho Biotech, Inc., 138 F.3d 733 (8th Cir. 1998), cert. granted, vacated and remanded, 525 U.S. 802 (1999). Won reversal of $780,000 sexual harassment award on basis that trial court applied erroneous standard for finding liability under state and federal law.
Minnesota Min. & Mfg. Co. v. Nishika, Ltd., 565 N.W.2d 16 (Minn. 1997). On certified questions from Texas Supreme Court relating to multimillion-dollar UCC dispute.
In re Minnesota Asbestos Litigation, 552 N.W.2d 242 (Minn. 1996), rev'g 540 N.W.2d 896 (Minn. Ct. App. 1995). Obtained reversal of case involving unconstitutional exercise of jurisdiction over Australian corporation; David Herr served as national coordinating counsel for client.
Independent School Dist. No. 622 v. Keene Corp., 511 N.W.2d 728 (Minn. 1994). Obtained reversal of multimillion-dollar punitive damage award, including fraud claim.
La Societé Générale Immobiliére v. Minneapolis Community Development Agency, 44 F.3d 629 (8th Cir. 1994), rev'g, 827 F. Supp. 1431 (D. Minn. 1993). Special appellate counsel for appellant; obtained reversal of multimillion-dollar judgment.
Seagate Technology, Inc. v. Int'l Business Machines Corp., 962 F.2d 12 (8th Cir. 1992). Represented individual appellant and obtained vacation of preliminary injunction in complex trade secrets case; cases stands as a leading case on "inevitable disclosure doctrine."
Minnesota Mining & Mfg. Co. v. Travelers Ins. Cos., 457 N.W.2d 175 (Minn. 1990). Counsel for plaintiff Tonka Corp. on question certified from federal court. Case established standards for issuance of coverage for environmental claims.
Uselman v. Uselman, 464 N.W.2d 130 (Minn. 1990). Counsel for appellant in seminal case establishing standards for Rule 11 sanctions in Minnesota. Won reversal of $180,000 sanction judgment; heard on accelerated review. Case remains leading sanctions case 20 years later.
Annotated Manual for Complex Litigation 4th, Thomson West, 2016 ed.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


D.C. Law Library - § 4–1371.12. Persons required to make reports; procedure.
↪ § 4–1371.12. Persons required to make reports; procedure.
§ 4–1371.11. Unlawful disclosure of information; penalties.
(a) Notwithstanding, but in addition to, the provisions of any law, including § 14-307 and Chapter 12 of Title 7, any person or official specified in subsection (b) of this section who has knowledge of the death of a child who died in the District of Columbia, or a ward of the District of Columbia who died outside the District of Columbia, shall as soon as practicable but in any event within 5 business days report the death or cause to have a report of the death made to the Registrar of Vital Records.
(b) Persons required to report child deaths pursuant to subsection (a) of this section shall include every physician, psychologist, medical examiner, dentist, chiropractor, qualified developmental disability professional, registered nurse, licensed practical nurse, person involved in the care and treatment of patients, health professional licensed pursuant to Chapter 12 of Title 3, law-enforcement officer, school official, teacher, social service worker, day care worker, mental health professional, funeral director, undertaker, and embalmer. The Mayor shall issue rules and procedures governing the nature and contents of such reports.
(c) Any other person may report a child death to the Registrar of Vital Records.
(d) The Registrar of Vital Records shall accept the report of a death of a child and shall notify the Committee of the death within 5 business days of receiving the report.
(e) Nothing in this section shall affect other reporting requirements under District law.
This section is referenced in § 4-1371.14 and § 7-1203.02.
The 2012 amendment by D.C. Law 19-169 substituted “developmental disability” for “mental retardation” in the first sentence of (b).
For temporary (90 day) addition of section, see § 12 of Child Fatality Review Committee Establishment Emergency Act of 2001 (D.C. Act 14-40, April 25, 2001, 48 DCR 5917).
For temporary (90 day) addition of section, see § 12 of Child Fatality Review Committee Establishment Legislative Review Emergency Act of 2001 (D.C. Act 14-82, July 9, 2001, 48 DCR 6355).


JOHN D. ASHCROFT, ATTORNEY GENERAL, ET AL.
1. Whether the court of appeals misapplied Federal Rule of Civil Procedure 56 in holding that the government was entitled to summary judgment on certain of petitioner's statutory and constitutional claims.
2. Whether the Secretary's blocking authority is limited to property in which a foreign country or national holds a "legally enforceable" interest.
3. Whether the court of appeals' consideration of classified information in its review of the challenged designations violated petitioner's rights under the Due Process Clause of the Fifth Amendment.
4. Whether the administrative procedures employed by the Secretary in connection with the challenged designations were consistent with the Due Process Clause.
The opinion of the court of appeals (Pet. App. 1-20) is reported at 333 F.3d 156. The opinion of the district court (Pet. App. 23-72) is reported at 219 F. Supp. 2d 57.
The court of appeals entered its judgment on June 20, 2003. A petition for rehearing was denied on August 22, 2003 (Pet. App. 76-77). The petition for a writ of certiorari was filed on November 19, 2003. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
[t]he President may * * * investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.
50 U.S.C. 1702(a)(1)(B), as amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. No. 107-56, § 106(1), 115 Stat. 277.
b. On September 25, 2001, in response to the terrorist attacks of September 11, the President issued Executive Order No. 13,224, which was designed to prevent the flow of funds used to support international terrorist activities. 66 Fed. Reg. 49,079. In that Executive Order, the President declared a national emergency with respect to the "grave acts of terrorism * * * and the continuing and immediate threat of further attacks on United States nationals or the United States." Ibid. Among other authorities, the President invoked IEEPA, and he determined that actual and threatened terrorist acts constitute "an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States." Ibid. Executive Order No. 13,224 identified 27 terrorists, terrorist organizations, and their supporters, designated them as such, and blocked their property and property interests subject to the jurisdiction of the United States. Ibid.; see id. at 49,083. The Executive Order also authorized the Secretary of the Treasury, in consultation with the Secretary of State and the Attorney General, to designate additional individuals or entities whose property or interests in property should be blocked because they "act for or on behalf of," or are "owned or controlled by," designated terrorists, or because they "assist in, sponsor, or provide * * * support for," or are "otherwise associated" with, designated terrorists or their supporters. Id. at 49,079-49,080.
"[B]ecause of the pervasiveness and expansiveness of the financial foundation of foreign terrorists," the President noted the need for "financial sanctions" against those who engage in or support terrorism. Exec. Order No. 13,224, 66 Fed. Reg. at 49,079. The Executive Order directed "[a]ll agencies of the United States Government * * * to take all appropriate measures within their authority to carry out the provisions" of the Executive Order. Id. at 49,081. The Executive Order also stated that, in light of the ability of property owners "to transfer funds or assets instantaneously, * * * prior notice to * * * persons [subject to blocking] of measures to be taken pursuant to this order would render these measures ineffectual." Ibid. The President accordingly determined that "there need be no prior notice of a listing or determination made pursuant to this order." Ibid.
Finally, Executive Order No. 13,224 granted the Secretary of the Treasury authority to "employ all powers granted to the President by IEEPA." 66 Fed. Reg. at 49,081. The President specifically authorized the Secretary to promulgate rules and regulations to carry out the purposes of the Order, and to redelegate such functions if necessary. Ibid. The Secretary has in turn delegated his authority to the Treasury Department's Office of Foreign Assets Control (OFAC).
c. Executive Order No. 13,224 supplements a prior order, Executive Order No. 12,947, which declared a national emergency to deal with the threat to the United States posed by the "grave acts of violence committed by foreign terrorists that disrupt the Middle East peace process." 60 Fed. Reg. 5079 (1995). Executive Order No. 12,947 blocked all property and interests in property of listed terrorist organizations. That Order has been renewed annually since 1995. See, e.g., 68 Fed. Reg. 3161 (2003). Executive Order No. 12,947 authorized the Secretary to designate additional entities whose property should be blocked because they are "owned or controlled by," or "act for or on behalf of," the organizations designated by the President. 60 Fed. Reg. at 5079.
d. In administering economic sanctions programs under IEEPA and other authorities, OFAC has promulgated regulations that define certain terms found in IEEPA, including the terms "property" and "interest" in property. See, e.g., 31 C.F.R. 500.311-500.312, 575.308, 575.315, 595.307, 595.310. OFAC has promulgated additional regulations that permit an individual or entity to seek a license to engage in transactions involving blocked property. See 31 C.F.R. 501.801-501.802. The regulations also establish a procedure by which a person may seek "administrative reconsideration" of a designation. 31 C.F.R. 501.807.
2. The Islamic Resistance Movement, also known as "Hamas," has been designated by the President as a Specially Designated Global Terrorist pursuant to Executive Order No. 13,224. Pet. App. 26. Hamas was also listed in Executive Order No. 12,947 as a terrorist organization that threatens to disrupt the Middle East peace process. See 67 Fed. Reg. 12,633-12,634 (2002); 60 Fed. Reg. at 5081.
contains ample evidence that (1) [petitioner] has had financial connections to Hamas since its creation in 1989; (2) [petitioner's] leaders have been actively involved in various meetings with Hamas leaders; (3) [petitioner] funds Hamas-controlled charitable organizations; (4) [petitioner] provides financial support to the orphans and families of Hamas martyrs and prisoners; (5) [petitioner's] Jerusalem office acted on behalf of Hamas; and (6) FBI informants reliably reported that [petitioner] funds Hamas.
While the suit was pending in the district court, and based on additional information, the Secretary proposed to redesignate petitioner as a Specially Designated Terrorist and a Specially Designated Global Terrorist. See Pet. App. 32 n.8. As part of the redesignation process, petitioner was permitted to submit any information or material that it considered relevant to the Secretary's decision. Ibid. By letter dated May 14, 2002, petitioner responded to some of the materials contained in the existing administrative record. See C.A. App. A886-A891. And, at petitioner's request, the agency added to its administrative record affidavits and other materials that petitioner had submitted to the district court in support of petitioner's challenge to the prior designations. See Pet. App. 4-5, 31 & n.7. On May 31, 2002, based on the expanded administrative record, the Secretary redesignated petitioner as a Specially Designated Terrorist and a Specially Designated Global Terrorist. See id. at 4-5, 32 n.8.
a. The district court denied petitioner's request to supplement OFAC's administrative record with petitioner's own evidentiary submissions. Pet. App. 29-32. The court explained that "the scope of review under the APA is narrow and must ordinarily be confined to the administrative record." Id. at 29 (citing Camp v. Pitts, 411 U.S. 138, 142 (1973)). The court found that petitioner's allegations of agency bad faith were unsupported, see id. at 30-31, and it concluded that petitioner had failed to demonstrate any legitimate reason to "depart from traditional record review analysis in this case," id. at 32.
b. The district court granted summary judgment to the government on petitioner's APA claims. Pet. App. 33-52. The court held that IEEPA's grant of authority to the President to block "property in which any foreign country or a national thereof has any interest" (50 U.S.C. 1702(a)(1)(B)) is not limited to property in which a foreign country or national holds a "legally enforceable interest." Id. at 34-36. The court also held that IEEPA's "humanitarian aid exception" (50 U.S.C. 1702(b)(2)) does not apply to donations of money. Id. at 36-38. Finally, the court held that the Secretary's decision to designate petitioner was not arbitrary or capricious because the "administrative record provides ample support for OFAC's conclusion that HLF acts for or on behalf of Hamas." Id. at 39; see id. at 39-52.
c. The district court dismissed petitioner's constitutional challenges to the OFAC designations. Pet. App. 53-58, 63-67. In rejecting petitioner's procedural due process claim, the court explained that petitioner was not entitled to pre-designation notice because of the nature of the challenged agency action-the blocking of funds to prevent their transfer to a terrorist organization, pursuant to the President's declaration of a national emergency-and because prior notice would have allowed the funds to be removed from the country, thereby frustrating the achievement of the blocking of assets. Id. at 53-56. The court also rejected petitioner's substantive due process challenge, based on its determination "that OFAC's designation of [petitioner] and blocking of its assets was not arbitrary and capricious under the APA." Id. at 56; see id. at 39-52. Finally, the district court dismissed petitioner's claims that the designations violated petitioner's rights under the First Amendment and the Religious Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb-1, explaining that neither the First Amendment nor the RFRA confers a right to provide material support to designated terrorist organizations. Pet. App. 63-70.
6. The court of appeals affirmed. Pet. App. 1-20.
[i]n this case, there was ample evidence of foreign "interests" in [petitioner's] assets. There was evidence demonstrating that [petitioner] operated as a fundraiser for Hamas in the United States and that Hamas officials provided [petitioner] with funds. Therefore, OFAC did not exceed its authority when it blocked the assets after the designation, because OFAC needed only to determine that Hamas had an interest in [petitioner's] property, and the record provided substantial evidence to support that conclusion.
b. The court of appeals affirmed the district court's dismissal of petitioner's due process claims. Pet. App. 11-13. In rejecting petitioner's claim that the absence of pre-designation notice and an opportunity to be heard rendered the designations unconstitutional, the court explained that any defect in the initial designations had been cured by the May 2002 redesignations, which occurred only after petitioner had been given an opportunity to supplement the administrative record. Id. at 11-12. The court further held that, in light of "the primacy of the Executive in controlling and exercising responsibility over access to classified information," OFAC's failure to disclose the classified portions of the administrative record did not violate petitioner's rights under the Due Process Clause. Id. at 13.
c. The court of appeals held that the district court had erred in dismissing petitioner's constitutional and RFRA claims under Federal Rule of Civil Procedure 12(b)(6), but that petitioner had suffered no resulting prejudice and that the error should therefore be treated as harmless. Pet. App. 14-19. The court explained that dismissal under Rule 12(b)(6) was inappropriate because the district court's rejection of those claims rested in part on its consideration of evidence showing that petitioner had provided funding to Hamas, rather than on the district court's assessment of the complaint standing alone. Pet. App. 14-15. Under those circumstances, the court of appeals concluded, the district court should have converted the government's motion to dismiss into one for summary judgment under Federal Rule of Civil Procedure 56. See Pet. App. 15.
The court of appeals explained, however, that petitioner "could have suffered prejudice only if the failure of the [district] court to convert the proceeding prevented [petitioner] from coming forward with evidence sufficient to create a substantial question of fact material to the governing issues of the case." Pet. App. 15. The court observed that "[t]he ample record evidence (particularly taking into account the classified information presented to the court in camera) establishing [petitioner's] role in the funding of Hamas and of its terrorist activities is incontrovertible." Id. at 16. The court also noted that petitioner had attempted to supplement the record on appeal after the district court's judgment, but that the additional material submitted at that time "could not have defeated the proposition established by the record evidence that [petitioner] was a funder of the terrorist organization Hamas." Ibid. Because petitioner had ultimately been given "every opportunity and incentive" to produce evidence rebutting OFAC's assessment of its activities, and had failed to cast significant doubt on the agency's determination that it provided funding to Hamas, the court of appeals concluded that the outcome of the case could not have been different if the district court had converted the government's motion to dismiss into one for summary judgment. Id. at 17.
The decision below is correct and does not conflict with any decision of this Court or of any other court of appeals. The Court recently denied review in another case raising similar challenges to a blocking order, see Global Relief Foundation, Inc. v. O'Neill, 315 F.3d 748 (7th Cir. 2002), cert. denied, 124 S. Ct. 531 (2003), and review is unwarranted in this case as well.
1. The court of appeals agreed with petitioner that, because the district court's rejection of petitioner's constitutional and RFRA claims was based in part on evidence contained in OFAC's administrative record, rather than simply on the allegations of petitioner's complaint, those claims were not properly subject to dismissal under Federal Rule of Civil Procedure 12(b)(6). See Pet. App. 14-15. The court of appeals further held, however, that the district court's error in this case was harmless: petitioner "suffered no prejudice as a result" of the Rule 12(b)(6) dismissal because the government would have been entitled to summary judgment under Federal Rule of Civil Procedure 56 in any event. Pet. App. 15; see id. at 15-19. Petitioner contends (Pet. 19-21) that the court of appeals erred in its application of Rule 56, and that summary judgment could not properly have been entered on petitioner's constitutional and RFRA claims because (a) petitioner was not permitted to obtain discovery from the government, (b) the court considered unsworn and hearsay testimony in reaching its decision, and (c) the court effectively resolved disputed factual issues by rejecting petitioner's contention that it did not fund Hamas. Those claims lack merit.
a. Petitioner's complaint (see Pet. App. 78-110) sought judicial review and invalidation of federal agency action-namely, the Secretary's designation of petitioner as a Specially Designated Terrorist and a Specially Designated Global Terrorist. The APA provides the statutory grant of authority for judicial review by the district court not only of petitioner's contention that the designations were arbitrary and capricious (see id. at 39-52), but also of its statutory and constitutional claims. See 5 U.S.C. 706(2)(A)-(C) (directing the court in an APA action to set aside agency action found to be "not in accordance with law," "contrary to constitutional right," or "in excess of statutory jurisdiction [or] authority"); Pet. App. 107 (petitioner's complaint invokes Section 706(2)(A)-(C)). The plaintiff in an APA suit has no right to obtain discovery from the government. Rather, the reviewing court must "decide, on the basis of the record the agency provides, whether the action passes muster under the appropriate APA standard of review." Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (emphasis added); see Pet. App. 29 (district court recognizes that "the scope of review under the APA is narrow and must ordinarily be confined to the administrative record").
The assertion of a constitutional claim as a separate ground for setting aside agency action under the APA does not entitle a plaintiff to seek discovery that would not otherwise be permitted in an APA suit. That is particularly so where, as here, the disposition of petitioner's constitutional claims turns on the resolution of a question of fact-i.e., whether petitioner had provided funding to Hamas-that was considered at length by the relevant agency and was central to the administrative determination under review.3 Petitioner was allowed to submit to OFAC any information it deemed relevant to the redesignation decision, and it was entitled to judicial review of the agency's decision (under an appropriately deferential standard, see pp. 14-15, infra), but it would not have been entitled to discovery in this APA action even if the district court had denied the government's Rule 12(b)(6) motion. Accordingly, the district court's failure to convert the government's motion to dismiss petitioner's constitutional claims to a motion for summary judgment had no practical effect on petitioner's ability to obtain discovery.
b. For similar reasons, the district court did not err in considering hearsay and unsworn statements in its review of the designations. Neither the APA nor IEEPA prohibits the Secretary from considering such materials, or requires him to adhere to the Federal Rules of Evidence and Civil Procedure, in determining whether a particular entity should be designated as a Specially Designated Terrorist or Specially Designated Global Terrorist. See pp. 21-22, infra. Because those materials were properly made part of the administrative record, the court of appeals was entitled (indeed, required) to consider them in its review of the agency's decision.
c. The court of appeals might properly have rested its decision on the foregoing general principles governing judicial review of administrative agency decisions. In addition, however, the court of appeals assumed arguendo that the additional evidence submitted by petitioner (including petitioner's attempt to supplement the record while the case was pending on appeal) was properly before it, and the court assessed whether that evidence might have affected the outcome of the case if it had been considered by the district court on a motion for summary judgment. See Pet. App. 16. The court concluded that "the supplementary material could not have defeated the proposition established by the record evidence that [petitioner] was a funder of the terrorist organization Hamas," and that the additional evidence therefore "would have made no difference" in the ultimate disposition of the case. Ibid. That fact-specific holding is correct and raises no legal issue of general importance warranting this Court's review.
Petitioner notes that it "submitted sworn declarations of its chief executive officer and two other key officials that it did not fund Hamas," and it contends that summary judgment was inappropriate in light of the parties' dispute on that factual question. See Pet. 20-21. Even when adjudicating constitutional challenges to federal agency action, however, a reviewing court should give deference to the factual determinations of the expert agency. That is particularly so in a case, like the instant one, that implicates questions of national security and foreign relations. See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 770 (1972) (decision to exclude alien, thereby depriving citizens of claimed First Amendment right to associate with him, should be upheld on the basis of "a facially legitimate and bona fide reason"). The courts below, in reviewing the challenged designations, were therefore charged with determining whether the Secretary's factual determinations about the nature of petitioner's activities were supported by substantial evidence-not whether the courts would have reached the same result if they had weighed the evidence de novo. Petitioner's declarations denying involvement in funding Hamas would not prevent a reviewing court from finding OFAC's determination to be reasonable and granting summary judgment to the government, even assuming that those declarations were properly regarded as part of the record before the court of appeals.
2. The court of appeals correctly rejected petitioner's contention (Pet. 26-29) that the blocking authority conferred by IEEPA is limited to property in which a foreign national or government holds a "legally enforceable" interest.
a. This Court has recognized "the broad authority of the Executive when acting under" IEEPA. Dames & Moore v. Regan, 453 U.S. 654, 672 (1981); see Regan v. Wald, 468 U.S. 222, 232-233 n.16 (1984) (referring to the "sweeping statutory language" of the Trading with the Enemy Act (TWEA) and noting that IEEPA "tracks the language" of TWEA). IEEPA by its terms encompasses "any property in which any foreign country or a national thereof has any interest." 50 U.S.C. 1702(a)(1)(B) (emphasis added). OFAC regulations broadly define the statutory term "interest" in property to mean "an interest of any nature whatsoever, direct or indirect." 31 C.F.R. 500.312; see 50 U.S.C. 1704 (authorizing the issuance of "such regulations, including regulations prescribing definitions, as may be necessary for the exercise of the authorities granted by" IEEPA). And, as the court of appeals recognized, the danger at which the IEEPA blocking provisions are directed-i.e., the risk that assets held within this country will be used to support terrorist activities overseas-"is at least as much raised by the prospect of the foreign terrorists holding the beneficial interest, or an interest not defined in traditional common law terms as it is by a legal interest which might be a pure fiction." Pet. App. 10.
b. The D.C. Circuit's ruling on this issue is consistent with the only other court of appeals decision that has squarely addressed the question presented here. See Global Relief Foundation, Inc. v. O'Neill, 315 F.3d 748, 753-754 (7th Cir. 2002), cert. denied, 124 S. Ct. 531 (2003). The plaintiff in Global Relief Foundation argued that the word "interest" in 50 U.S.C. 1702(a)(1)(B) should be construed "as referring to a legal interest, in the way that a trustee is legal owner of the corpus even if someone else enjoys the beneficial interest." 315 F.3d at 753; see Pet. App. 10 (discussing Global Relief Foundation). In rejecting that contention, the Seventh Circuit explained that IEEPA "is designed to give the President means to control assets that could be used by enemy aliens," and that construing the term "interest" as limited to legal interests would impair "the United States' ability to respond to an external threat." 315 F.3d at 753. The court concluded that "the focus must be on how assets could be controlled and used, not on bare legal ownership. [Global Relief Foundation] conducts its operations outside the United States; the funds are applied for the benefit of non-citizens and thus are covered by § 1702(a)(1)(B)." Ibid. Similarly here, the D.C. Circuit correctly found that the existence of a foreign "interest" in petitioner's assets was established by "evidence demonstrating that [petitioner] operated as a fundraiser for Hamas in the United States and that Hamas officials provided [petitioner] with funds." Pet. App. 10.
c. Petitioner's reliance (Pet. 27-28) on Centrifugal Casting Machine Co. v. American Bank & Trust Co., 966 F.2d 1348 (10th Cir. 1992), is misplaced. In Centrifugal Casting, the Tenth Circuit held that Iraq had no cognizable "interest," for purposes of OFAC's blocking authority, in funds paid to a United States corporation as a down payment for services performed for an Iraqi agency pursuant to a letter of credit transaction. See id. at 1350-1354. In reaching that conclusion, the court relied heavily on legal principles governing letter of credit transactions, which are not implicated here. See id. at 1351-1353.
As petitioner observes (Pet. 28), the Tenth Circuit in Centrifugal Casting referred to the fact that Iraq lacked any "legally cognizable property interest" in the relevant funds. See 966 F.2d at 1353, 1354. The court did not suggest, however, that the facially unqualified IEEPA term "interest" is categorically limited to "legally cognizable" interests, much less that the OFAC regulations-which define the term more broadly- reflect an unreasonable construction of the statute. Rather, the thrust of the Tenth Circuit's analysis was that the mere possibility that domestically-owned funds in the possession of a party to an arm's-length contractual relationship with a foreign entity will someday be transferred to that entity is insufficient to give the foreign entity an "interest" in the property. See id. at 1353 ("[W]e know of no legal authority for the proposition that a potential breach of contract claim, prior to the commencement of litigation, gives a putative plaintiff a legally cognizable property interest in the assets of the putative defendant."). The Tenth Circuit simply did not address the very different situation presented here, in which OFAC's determination that foreign entities have an "interest" in petitioner's property was based on abundant evidence of actual and extensive financial and other connections between petitioner and Hamas.
Both "the primacy of the Executive in controlling and exercising responsibility over access to classified information, and the Executive's compelling interest in withholding national security information from unauthorized persons in the course of executive business," support the consideration of classified information in reviewing designations made by the Secretary pursuant to IEEPA. Pet. App. 13 (internal quotation marks omitted). Although judicial reliance on evidence that is not disclosed to one of the parties is appropriate only in unusual situations (see Pet. 22), petitioner cites no decision that has categorically foreclosed judicial consideration of classified information, or that has held unconstitutional the IEEPA provision (50 U.S.C. 1702(c)) that expressly authorizes ex parte review of such evidence in the current setting. The Seventh Circuit in Global Relief Foundation considered and rejected a due process challenge to the use of classified information under circumstances not meaningfully different from those presented here. See 315 F.3d at 754.
4. Petitioner also asserts a due process challenge to the administrative procedures employed by OFAC in connection with its decisions to designate and subsequently redesignate petitioner pursuant to IEEPA. See Pet. 24-26. Petitioner does not challenge the determination by the President and the Secretary that pre- blocking notice was inappropriate in light of the exigencies involved here. See, e.g., Pet. 24 (acknowledging this Court's "approval of limited pre-deprivation procedures"); Global Relief Foundation, 315 F.3d at 754 ("Although pre-seizure hearing is the constitutional norm, postponement is acceptable in emergencies."); Pet. App. 53-56. Petitioner contends (Pet. 24-26), however, that the agency failed to provide constitutionally adequate post-blocking procedures for challenging the designations. That claim lacks merit.
Petitioner received notice immediately following the initial designation, with a specific reference to OFAC's established procedures for seeking administrative reconsideration of a designation. C.A. App. A892-A893; see 31 C.F.R. 501.807. Because petitioner chose not to pursue that post-designation remedy, it cannot now complain that the agency procedures are inadequate. In any event, petitioner received an ample opportunity to submit relevant evidence and argument during the redesignation process, which took place during the pendency of this litigation in the district court and was completed less than six months after the initial designation and attendant blocking of petitioner's assets. See Pet. App. 4, 12, 27-28, 31 n.6, 32 n.8.
Petitioner was given a copy of the unclassified portion of the administrative record, and "[o]n April 30, 2002, OFAC sent [petitioner] formal notification that it was considering redesignating [petitioner] as" a Specially Designated Terrorist and a Specially Designated Global Terrorist. Pet. App. 32 n.8. OFAC afforded petitioner an opportunity to respond to the information in the existing administrative record and to submit any evidence that it believed was relevant to the redesignation decision, and the agency "committed to consider any information that [petitioner] submitted prior to the agency's action on the redesignation." Ibid. In so doing, "Treasury provided [petitioner] with the requisite notice and opportunity for response necessary to satisfy due process requirements." Id. at 12.
By letter dated May 14, 2002, petitioner responded to some of the materials contained in the existing administrative record. See C.A. App. A886-A891. And, in accordance with petitioner's request, the administrative record compiled by OFAC in connection with the redesignation process included materials submitted by petitioner to the district court during the instant litigation. See Pet. App. 4-5, 31 & n.7. Petitioner was thus allowed to, and in fact did, participate substantially in the creation of the administrative record that underlay OFAC's redesignation decision.
Contrary to petitioner's suggestion (Pet. 25), the Due Process Clause does not require federal agency determinations to be based upon a full-blown trial-like procedure. "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Gilbert v. Homar, 520 U.S. 924, 930 (1997). This Court has frequently upheld administrative decisions based on procedures that do not include cross-examination or other mechanisms associated with a judicial proceeding. See, e.g., Brock v. Roadway Express, Inc., 481 U.S. 252, 266 (1987). As the court of appeals correctly held, petitioner "has no right to confront and cross-examine witnesses," because the Due Process Clause "do[es] not require an agency to provide procedures which approximate a judicial trial." Pet. App. 12. Nor is there any constitutional prohibition on the Secretary's use of hearsay information (see Pet. 26) in administrative decision-making. See Richardson v. Perales, 402 U.S. 389, 407-408 (1971).
Petitioner identifies no case holding that the procedures utilized by OFAC in connection with IEEPA designation decisions are constitutionally deficient. Absent any conflict in authority, petitioner's due process challenge to those procedures does not warrant this Court's review.
1 The district court found it unnecessary to consider the classified information in order to resolve this case. See Pet. App. 29 n.3. The court of appeals, however, treated the classified information as part of the record before it and relied in part on that information in reaching its decision. See id. at 16.
2 The district court denied the government's motion to dismiss one count of petitioner's complaint, which asserted a Fourth Amendment challenge to a search of its premises that had been conducted incidental to the Secretary's designation. Pet. App. 58-62. That count remains pending in the district court, and it has been stayed pending this Court's disposition of the certiorari petition.
3 At least in this Court, petitioner does not contend that the restrictions imposed pursuant to IEEPA on the transfer of funds to Hamas impair its rights under the First Amendment. To the contrary, petitioner states that "[n]o one would dispute the importance of cutting off financing for terrorists, including Hamas." Pet. 4. Petitioner's First Amendment claims rest instead on the assertion that petitioner has not in fact provided such funding.
4 Even apart from the government's compelling interest in cutting off the flow of funds to international terrorists, there is an independent national security interest in ensuring that classified information remains secure. Indeed, this Court has recognized that the government has a "'compelling interest' in withholding national security information from unauthorized persons in the course of executive business." Department of the Navy v. Egan, 484 U.S. 518, 527 (1988) (quoting Snepp v. United States, 444 U.S. 507, 509 n.3 (1980)).


Practice, Criminal, Plea. Alien. Statute, Construction.
This court concluded that G. L. c. 278, s. 29D, providing that a judge shall not accept a plea of guilty or nolo contendere from a defendant in a criminal proceeding unless the court advises such defendant that his conviction could have the consequences of "deportation, exclusion from admission to the United States, or denial of naturalization," required a District Court judge, who heard a defendant's motion to withdraw his admission to sufficient facts to warrant findings of guilty of multiple crimes, to deliver the alien warnings orally as part of the colloquy, and, where the warnings given during that colloquy failed to meet the statutory requirements, the defendant's signature on the court's standard form containing the warnings did not suffice to avoid the consequences mandated by the statute: allowance of the defendant's motion to withdraw his admissions and entry of a plea of not guilty. [813-819] IRELAND, J., concurring.
COMPLAINTS received and sworn to in the Somerville Division of the District Court Department on July 2, July 11, and July 14, 1996, respectively.
A motion to vacate an admission to sufficient facts and for a new trial, filed on March 11, 1998, was heard by Paul P. Heffernan, J.
Kathleen A. Murphy, Special Assistant District Attorney (David W. Cunis, Assistant District Attorney, with her) for the Commonwealth.
Jennifer J. Smith, Committee for Public Counsel Services, & Daniel Kanstroom, Iris Gomez, & Sarah Ignatius, for Committee for Public Counsel Services & others, amici curiae, submitted a brief.
he would find acceptable. See id.; Mass. R. Crim. P. 12 (c) (6), as appearing in 399 Mass. 1215 (1987). The defendant decided to accept the judge's proposed disposition.
"Defendant ACCEPTS terms set forth by the Court, a Plea or Admission will be accepted by the court and said dispositional terms imposed, subject to submission of defendant's written WAIVER (see Section IV on reverse of this form), completion of the required oral COLLOQUY, a determination that there is a FACTUAL BASIS for the Plea or Admission, and notice of ALIEN RIGHTS."
The "Section IV" waiver referenced in that acceptance appeared at the top of the reverse side, captioned "DEFENDANT'S WAIVER OF RIGHTS (G. L. c. 263, § 6) & ALIEN RIGHTS NOTICE (G. L. c. 278, § 29D)." In five separate paragraphs, the printed waiver first acknowledged the defendant's voluntary waiver of his right to be tried by a jury or judge, his understanding of his constitutional rights, his awareness of the nature and elements of the charge, the voluntariness of his decision to plead guilty or admit to sufficient facts, and the absence of any impairment affecting his ability to understand his rights. Then, in the sixth paragraph, the form read: "I understand that if I am not a citizen of the United States, conviction of this offense may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States." Immediately below that paragraph was the line for the defendant's signature. The defendant signed each of the three forms on that signature line.
to tender his or her plea of guilty or admission knowingly, intelligently and voluntarily." The defendant's counsel signed each form underneath that certification.
The judge conducted a plea colloquy, first explaining the proposed disposition and then confirming the defendant's awareness of his rights, the voluntariness of his decision to admit to sufficient facts, and the absence of any impairment. The judge next asked the defendant, "If you're not a full United States citizen, a finding of guilty in these cases could affect your status; do you understand that?" The defendant made some response, but the transcript reflects that it was "inaudible." The judge continued, "Do you know what that means?" Before the defendant replied, the judge continued: "For the record, further I must be satisfied that you are making these admissions because you feel you would be found guilty at trial and that there is no other reason; is that so?" The defendant's response was recorded as "inaudible." The judge proceeded to explain that with respect to two of the complaints (one for operating after suspension and the other for larceny of a motor vehicle), "a finding of guilty will not only affect your status if you're not a citizen, but would also affect your license or right to operate [a] motor vehicle; do you understand that?" The transcript again recorded the defendant's response as "inaudible." The prosecutor then recited the facts underlying the complaints; the judge asked defense counsel whether she had "[a]ny questions regarding these matters"; and counsel replied that there were "[n]o questions on the facts . . . ." The defendant was then found guilty and sentenced. At no point during the colloquy did the judge make any reference to the rule 4 (c) forms or to the defendant's acknowledgment of the immigration warnings on those forms.
which he or she was charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States."
the enumerated immigration consequences and that, if warnings were not given in accordance with the statute, he would be entitled to withdraw his admissions. We therefore need only determine whether the court "fail[ed] so to advise the defendant." G. L. c. 278, § 29D.
The oral warning given during the colloquy did not satisfy the statute's requirements, as the judge merely told the defendant that "a finding of guilty in these cases could affect [his] status." In Commonwealth v. Soto, 431 Mass. 340 , 342 (2000), we held that "[i]t is incumbent on the judge to notify a defendant that there are three specific consequences to a plea: (1) deportation; (2) exclusion of admission to the United States; and (3) denial of naturalization. A defendant must be advised of all three consequences of his plea." In that case, the defendant, who had pleaded guilty to a narcotics charge in 1990, moved to vacate his plea seven years later after the INS initiated proceedings to exclude him from the United States as an "arriving alien." Id. at 341. Although the judge who took the defendant's plea had warned him that his plea "could result in [his] being denied citizenship, or for that matter, being deported," the court had failed to advise the defendant that a guilty plea might result in his being excluded from admission -- the precise consequence the defendant later faced. Id. at 341, 342. We held that a defendant must be told "exactly what immigration consequences his or her guilty plea may have" by explicit reference to "all three consequences" specified in the statute. Id. at 342.
practice would have been for the judge to read directly from the statute the advisement contained therein").
The Commonwealth contends that this defect in the verbal warning was cured by the preprinted warning on the rule 4 (c) form, which the defendant signed three times. Essentially, the Commonwealth is arguing that the written warning, augmented by the judge's references to the defendant's immigration "status," satisfies the statutory requirement that "the court" provide the warnings. We reject the contention that solely providing a form containing written alien warnings, given to defense counsel by a court official (e.g., assistant clerk or probation officer), satisfies the statutory requirement that "the court advise such defendant" of those immigration consequences. The use of such forms serves other purposes, as it provides a written record of the change of plea (including a record of the administration of alien warnings), and the written material serves to reinforce the various rights, warnings, and other information that is provided orally during the course of the colloquy. The form, however, is not a substitute for the alien warnings that must be given by "the court."
When the Legislature uses the same term in the same section, or even in different statutory sections, the term should be given a consistent meaning throughout. See Webster v. Board of Appeals of Reading, 349 Mass. 17 , 19 (1965); Police Dep't of Boston v. Fedorchuk, 48 Mass. App. Ct. 543 , 549 (2000); Commonwealth v. Perry, 6 Mass. App. Ct. 531 , 535 (1978). Thus, when the same term ("the court") is used throughout § 29D, in contexts that clearly refer to a judge, the use of that same term to identify the person responsible for advising the defendant of the potential immigration consequences must also refer to a judge, specifically, the judge who is conducting the plea colloquy and deciding whether to "accept" the change of plea. G. L. c. 278, § 29D. It does not refer to the court as an institution, and does not thereby refer to court personnel who might, by providing the defendant with the standard rule 4 (c) form, be "advis[ing]" the defendant of the immigration consequences referenced on that form.
time of his guilty plea, the judge fails to warn him of the three immigration consequences"); Commonwealth v. Desorbo, 49 Mass. App. Ct. 910 , 911 (2000) (§ 29D "requires judges to give [warnings] to a defendant tendering a plea of guilty," and "the Legislature has set out and placed in quotation marks the exact text of what judges should say on such occasions"); Commonwealth v. Lamrini, 27 Mass. App. Ct. 662 , 666, 667 (1989) ("a judge must inform the defendant" of immigration consequences specified in § 29D, and "when a defendant has not been so advised by the judge," § 29D provides for withdrawal of plea; notes that "better practice [is] for the judge to read directly from the statute the advisement contained therein"); Reporters' Notes to Mass. R. Crim. P. 12 (c) (3), Mass. Ann. Laws, Rules of Criminal Procedure, at 117 (Lexis 1997) (§ 29D warnings "expressly required by the statute to be imparted by the judge, rather than by counsel as permitted by this subdivision with respect to other consequences" of guilty plea). This comports with the commonsense interpretation that, in context, the term "court" in § 29D refers to the judge taking the plea, not to any other court official or to the court as an institution.
the Legislature has prescribed the remedy for such failure: the defendant must be permitted to withdraw his admissions and enter a plea of not guilty.
The order of the District Court denying the defendant's motion to withdraw his admission to sufficient facts and for a new trial is reversed, and the matter is remanded to the District Court for further proceedings consistent with this opinion.
for the same reason that I dissented in Commonwealth v. Villalobos, ante 797, 806 (2002).
[Note 1] Because we resolve this issue in the defendant's favor, we need not reach the defendant's additional argument that he was not adequately informed of the nature and elements of the offenses before he admitted to sufficient facts. See Commonwealth v. Hilaire, 51 Mass. App. Ct. 818 , 825-827 (2001) (Brown, J., concurring).
[Note 2] The judge's ruling did not rely on the written alien warnings contained on the "Tender of Plea or Admission Waiver of Rights" form.
[Note 3] For purposes of G. L. c. 278, § 29D, an admission to sufficient facts to warrant a finding of guilt is the functional equivalent of a guilty plea, entitling such a defendant to receive the warnings and to obtain the same relief in the event of adverse immigration consequences following a failure to give those warnings. See Commonwealth v. Rzepphiewski, 431 Mass. 48 , 50 n.3 (2000); Commonwealth v. Jones, 417 Mass. 661 , 662-663 (1994); Commonwealth v. Mahadeo, 397 Mass. 314 , 316-317 n.2 (1986).
[Note 4] The term "court" is used as a synonym for "judge" in many other statutes as well. See, e.g., G. L. c. 218, § 26A (on defendant's motion "or upon the court's own motion, the judge shall issue an order of discovery"); G. L. c. 208, § 34 (in setting alimony and assigning property, "the court, after hearing the witnesses, if any, of each party, shall consider the length of the marriage"); G. L. c. 233, § 65 (declaration of deceased person admissible "if the court finds that it was made in good faith and upon the personal knowledge of the declarant"); G. L. c. 211E, § 3 (a) (2) (describing how sentencing guidelines to be used by "sentencing judge," providing that "[i]n the absence of an applicable sentencing guideline the court shall impose an appropriate sentence . . .").
[Note 5] The purpose of including such a certification on the form is to provide a "record" that the warnings were given, as "[a]bsent a record that the court provided the advisement required by [§ 29D], the defendant shall be presumed not to have received the required advisement." G. L. c. 278, § 29D. See Commonwealth v. Podoprigora, 46 Mass. App. Ct. 928 , 929 (1999) (notation on docket that defendant advised of "alien rights" constituted sufficient "record" that § 29D warnings administered). See also Commonwealth v. Pryce, 429 Mass. 556 , 557-558 (1999) (notation on docket that guilty plea accepted "after hearing," combined with evidence that "standard colloquy" included alien warnings, constituted sufficient "record" that warnings given). Nothing in today's opinion disturbs our jurisprudence concerning the requisites for an adequate "record" for purposes of the statutory presumption, and we encourage the continued use of such forms to preserve such a "record." Here, however, a transcript of the colloquy is available; we thus have no need to resort to secondary sources, such as the preprinted form, to determine the contents of the alien warnings that were given during the colloquy. While such secondary sources suffice in the absence of an official transcript, they do not cure specific defects in the warnings that are revealed by the contents of an available transcript. As such, the Commonwealth's reliance on Commonwealth v. Pryce, supra, is misplaced.
[Note 6] Indeed, the statute prohibits the judge from even making inquiry as to the defendant's immigration status: "The defendant shall not be required at the time of the plea to disclose to the court his legal status in the United States." G. L. c. 278, § 29D.
[Note 7] Although not required by the statute, where the defendant is admitting to sufficient facts for purposes of obtaining a continuance without a finding and ultimate dismissal of the charges, G. L. c. 278, § 18, the better practice is to supplement the alien warning by informing the defendant that even a continuance without a finding followed by dismissal may be treated as a "conviction" for immigration purposes. See Commonwealth v. Villalobos, ante 797, 806 n.5 (2002).


47-417a. Brand inspection; fees; disposition; livestock brand fee fund; rules and regulations. (a) The animal health commissioner, when brand inspectors or examiners are available, may provide brand inspection. When brand inspection is requested and provided, the animal health commissioner shall charge and collect from the person making the request, a brand inspection fee of not to exceed $.75 per head for all livestock. No inspection charge shall be made or collected at any licensed livestock market where brand inspection is otherwise available.
(b) The animal health commissioner shall remit all moneys received under the statutes contained in article 4 of chapter 47 of the Kansas Statutes Annotated, and amendments thereto, to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of each such remittance, the state treasurer shall deposit the entire amount in the state treasury to the credit of the livestock brand fee fund. All expenditures from such fund shall be made in accordance with appropriation acts upon warrants of the director of accounts and reports issued pursuant to vouchers approved by the secretary of agriculture.
(c) The commissioner is authorized to adopt and enforce such rules and regulations governing brand inspections as the commissioner shall deem necessary for the proper enforcement of the livestock laws in Kansas. The commissioner, brand inspectors and special investigators shall aid in investigations and prosecutions of violations of the livestock laws of Kansas and other laws of this state and of the rules and regulations of the commissioner.
History: L. 1958, ch. 16, § 2 (Special Session); L. 1965, ch. 330, § 1; L. 1973, ch. 2, § 19; L. 1975, ch. 281, § 2; L. 1982, ch. 223, § 2; L. 1986, ch. 196, § 1; L. 1991, ch. 152, § 4; L. 2001, ch. 5, § 160; L. 2012, ch. 140, § 16; L. 2016, ch. 51, § 6; July 1.


text:
This all came about at the famous trial in front of Judge Levine a few years ago. Michael Kopelevich I think was the attorney for the provider. The question raised was who is Lynn Carter an MCMC stated she did not exist. This is probably not a good marketing technique for an IME vendor.
Why Lynn Carter? Do we have Dixie Carter , Jimmy Carter or Gary Carter fans at MCMC?
I am not sure what to make of these two decisions. Read them yourself. I think Alrof is wrong. The Appellate Division in Lucas rejected it and the Appellate Term, Second Department in Quality v. Interboro clearly will not hold it as sacrosanct when a proper practice and procedure affidavit is presented.
This is perhaps the DJ of the year so far. So many principles of law have been established and/or confirmed. First, the medical provider and or assignor must cooperate with the EUO, i.e., attend it and answer questions. Second, the failure to cooperate during the EUO through walking out during it, objecting too many times, engaging in obstructionist behavior can lead to a violation of a condition precedent to coverage, provided Park v. Long Island Insurance Company warnings are set forth.
The unsettled question that may play out now is: what constitutes obstructionist behavior? We know the outter bounds of what constitutes this behavior. But, how many objections is required before a disclaimer may be issued? What happens if an EIP or medical provider lies during the EUO? How does Utica v. Timms (you can lie and not lose your benefits) work into this equation? There a lot of unanswered questions. In my mind, the extremes will allow for a disclaimer. Misrepresentations and a few inappropriate objections will probably not trigger a Huff remedy.
On top of that, the contents of the EUO transcript are admissible without further foundation against the medical provider. Counsel for Defendant was successful at making that argument in Civil Court Kings County against me a few years ago, i.e., you cannot use the contents of the EUO transcript against the innocent assignee. I thought it was an incredulous argument, which would be shot down at the Appellate Term or Appellate Division.
Funny enough, counsel in the Civil Kings case pressed his luck in front of the First Department and rightfully saw what five learned jurists had to say about that argument. These are all good things in my mind.
I believe that this case is probably somewhere between the ATIC dj appeals and Unitrin as to its precedential value.
Seems to be the same cohorts that draw Alrof citations. In my mind, after you lose, change the affidavits. Appealing the same losing affidavits is insane and helps nobody. The definition of insanity is to do the same thing over and over again and to expect a different result.
Putting aside certain disdain towards the Second Department punting the “absolute coverage” component of Unitrin and ATIC v. Lucas, the IDS case said that when carrier wants an EUO of whoemever, no is not a suitable answer. The case also spoke about “partial performance”, which probably means showing up to the EUO. I am not sure what needs to be answered to constitute partial performance, although answering relevant questions would seem to fit the bill.
Note: “assuming arguendo”. Read this how you want, but I think assuming arguendo leads to a certain result.
If you follow this blog, you will know that “Alrof” is not really good law. For reasons I am not even going to discuss on here, I ended up challenging this proposition of law and prevailed on it. The First Department (ATIC v. Lucas), the Second Department (Interboro v. Clennon) and this Court (Quality v. Interboro; Ortho Products v. Interboro) have all found that Alrof does not mean what it says.
But, in this Court, if you wish to resurrect W&Z v. Amex, the affidavit from the “partner” had better lead that horse to water and make it drink it. And, it is not the quantity of verbiage that is in the affirmation which will win the day, it is how you present it, lay it out and assert it.
Standard EUO no-show motion. However, the issue (among others) involved the proof of no-show. Is a certified EUO bust statement sufficient to prove the no-show? The answer is yes and the complaint is dismissed.

matches: v. v. v. v. v. v. v. v. v.