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In the Donetsk People’s Republic, great attention is paid to the support of vulnerable groups of the population, including disabled persons, who are entitled to pension under the DPR legislation.
Currently, there are 2695 people with disabilities living in the Republic, of which 1385 have visual impairment category 1 and 1310 have visual impairment category 2, for whom it is challenging to put a handwritten signature on various types of documents, and, in particular, on documents confirming the receipt of pensions. Due to their health issues, most people with disabilities are unable to properly testify the fact of receiving social payments.
In this regard, the DPR Human Rights Ombudsman clarifies that in accordance with the Guidelines on payment and delivery for pensions, social benefits by the national postal operator, approved by order of the Ministry of Transport and Communications of Ukraine, the Ministry of Labor and Social Policy of Ukraine dated April 28, 2009 No. 464/156, as well as a decree of the Pension Fund of Ukraine dated April 28, 2009 (which is temporarily in force in the territory of the Donetsk People’s Republic), if a pension recipient cannot put their own hand-written signature in records confirming receipt of pension due to health issues, the said entity authorizes another person to sign the papers in his/her presence (however, except for employees of medical institutions, Pension Fund bodies, staff of labor and social protection bodies, and communication workers). At the same time, the column “Signature of the recipient” indicates “…signed on behalf of the recipient”, after which the relevant data of the person who put his/her signature in the paper (the name and initials, registration (residence), passport number series, or the number of other identity document).
In addition, the Notaries Act of the Donetsk People’s Republic dated December 21, 2018 No. 08-IINS provides for the right of notaries, consular officers and designated officials of local self-government bodies of the Donetsk People’s Republic to attest the identity of the visually impaired person’s hand-written signature with facsimile reproduction of his/her own signature (paragraph 21 of part 1 of article 43, paragraph 9 of part 2 of article 44, paragraph 12 of part 1 of article 45, article 94 of the aforementioned Law).
Thus, notaries of the Donetsk People’s Republic attest the identity of the handwritten signature of a visually impaired person with the facsimile reproduction of their handwritten signature in the event that this category of persons needs to carry out various legal operations.
It should be noted that the system of state-guaranteed support for visually impaired people, which facilitates for overcoming, substitution (compensating) restrictions related to health condition, provides for the possibility of receiving pensions, other social payments, as well as various legal operations. Meanwhile, the mechanism that allows for exercising of the rights and freedoms of this category of citizens includes additional safety measures aimed at avoiding the possibility of abuse of their rights and freedoms by other persons due to their health condition.
The Human Rights Ombudsman in the Donetsk People’s Republic continues to receive requests from persons convicted before the conflict regarding the transfer to the territory of Ukraine to continue serving their sentences.
We hereby clarify that the transfer of convicts is carried out under the Decree of the Head of the Donetsk People’s Republic of 12.11.2015 No. 424 “On the transfer of convicted prisoners, who are under custody in penitentiary institutions of the Donetsk People’s Republic, and criminal files, kept in the courts and investigative bodies of the Donetsk People’s Republic, to Ukraine”.
Despite the unilateral character of the transfer of convicts, the Donetsk People’s Republic prepares lists of persons to be transferred, following the established procedure. The lists are being compiled by the State Penitentiary Service of the Ministry of Justice of the Donetsk People’s Republic based on the requests from convicts.
Having received the relevant information, the Ombudsman organizes the transfer of convicts and their criminal files, kept in the courts and investigative bodies of the Donetsk People’s Republic, to Ukraine.
those who filed the appropriate request with the State Penitentiary Service of the Ministry of Justice of the Donetsk People’s Republic.
In accordance with the provisions of Article 43 of the Civil Code of Ukraine (as revised in the territory of the Donetsk People’s Republic), a natural person can be recognized by the court as missing if there hasn’t been any information about their whereabouts at their place of permanent residence during one year.
The procedure for issuing a declaration of absence has been established by Art. 246, 248, 249 of the Civil Procedure Code of Ukraine (as revised in the territory of the Donetsk People’s Republic).
The statement for issuing a declaration of absence is filed with the court at the applicant’s place of residence or at the last known place of residence (stay) of an individual whose whereabouts are unknown, or at the location of his/her property.
– circumstances of disappearance of the missing person, or circumstances that were dangerous to their life, or circumstances giving reason to assume his/her death from a certain accident.
According to paragraph 10 of Part 1 of Art. 4 of the Law of the Donetsk People’s Republic of 03.20.2015 No. 26-INS “On Court Fees” the application filed with the court must be paid in the amount of 400 Russian rubles.
2) requests the relevant organizations at the last place of residence of the missing person (housing maintenance organizations, internal affairs bodies or local government bodies) and their last place of work about any information available on an individual whose whereabouts are unknown.
After the entry into force of a court decision recognizing a person as missing, a notary registers the property belonging to the missing person and appoints guardianship for the care of his/her property at the last place of residence, in accordance with Part 1 of Art. 44 of the Civil Code of Ukraine. It should be noted that the court takes measures through the guardianship and custody bodies on establishing guardianship over the property of the physical person, whose whereabouts are unknown if the custody of the property has not been established yet (Part 2 of Article 248 of the Code of Civil Procedure of Ukraine). And such guardianship can be established before the court makes a decision on the application to the notary of the interested person or the guardianship and trusteeship body, according to part 2 of Art. 44 of the Civil Code of Ukraine.
For further advice regarding the norms of the current legislation, citizens may approach the Public Reception of the DPR Human Rights Ombudsman Office at the address: 34 Pushkina blvd., room 101.
The court has rejected my request for parole. After what time can I re-apply to the court with a similar petition, if there were 10 months left at the time of the refusal?
According to the provisions of Part 5, Art. 434 of the Criminal Procedure Code of the Donetsk People’s Republic of 24.08.2018 No. 240-INS, if the court rejects the conditional release of a convicted person or commutation to lighter sentence of unserved portion of a sentence, the resubmission of such a request by persons convicted of grave crimes to imprisonment for a period of not less than five years, may take place no earlier than one year from the date of the court decision, and no earlier than six months for those convicted for other crimes and juvenile convicts. Unfortunately, the crime you had been sentenced for has not been specified in your question, and therefore, the Ombudsman cannot provide a more specific explanation to your situation.
In July 2018, the court issued a court order to recover my household debt for the supplied heat in favour of SE “Donetskteploset”. I became aware of the above court order only in January 2019. I was not present at the court session, and I do not agree with this court decision. How can I vacate it?
A court order is a special form of judicial decision, delivered by the courts on the basis of the application of the plaintiff. Consideration of this application is carried out in absentia of the debtor.
Articles 95 and 96 of the Civil Procedure Code of Ukraine as revised in the territory of the Donetsk People’s Republic by virtue of the Resolution of the Council of Ministers of the Donetsk People’s Republic of 02.06.2014 No. 9-1 “On application of the Law in the territory of the Donetsk People’s Republic during the transition period” (as amended and supplemented). It specifies the grounds on which a court order may be issued.
– if there is a request on an amount of money spent for non-conforming goods, provided that there is a court decision that has entered into legal force establishing the fact that non-conforming goods had been sold, rendered in favour of an indefinite number of consumers.
Thus, the recovery of debt on utility payments can be court-ordered.
In the view to protect the rights and interests of the debtor, who was court-ordered to recover the debt for utilities, there is a procedure for appealing and vacating a court order.
A debtor who has received a court order for the recovery of payment has the right to file an application in due order to vacate it within 10 days from the date of its receipt. The day of receipt of the court order is deemed to be the day of actual receipt of a copy of the court order or the date of putting a mark in the postal notification of the refusal of the debtor to receive a copy of the court order or a record of the absence of the debtor at the indicated address. An application for vacation of a court order is submitted to the court that issued it.
An application for the vacation of a court order must be considered by a judge within 10 days from the moment of accepting it.
Based on the above, we recommend that you apply to the court that issued the court order with the appropriate application for its vacation.
Please note that the vacation of a court order does not discharge the debtor from proving his non-indebtedness, since the plaintiff may later file another claim with the court.
I live in Belgorod, Russian Federation. I am searching for my son, who left to Donetsk in March 2016 and has not been in contact with me since that time. Please tell me where to turn for help.
In addition, the DPR Human Rights Ombudsman keeps the record of missing persons. You may contact the Ombudsman through hotline (+38071-301-73-52) in order to add your son in the list of missing persons in the DPR.
Under Part 1 of Art. 53 of the Law of the Donetsk People’s Republic of 20.02.2015 No. 12-INS “On Forensic Expert Activities”, a number of forensic examinations, including DNA tests, are carried out in state forensic institutions. Now, the Republican Bureau of Forensic Medicine of the Ministry of Health of the DPR is working on genotyping of the remains of unidentified bodies and their subsequent identification wherever there are blood samples from direct relatives of wanted persons for comparative analysis.
Based on the above, in order to exclude the possibility that your son is in the list of unidentified individuals who died as a result of hostilities, you may approach the Republican Bureau of Forensic Medicine at the following address: 14 Ilicha Str., Donetsk, block 9 (phone: +38-099-229-30-90; +38-071-326-15-93, Monday to Friday from 9:00 to 15:00). You have to download, print and fill in a questionnaire at the official website of the Ministry of Health of DPR, which will be necessary for the Republican Bureau of Forensic Medicine.
In the territory of the Donetsk People’s Republic, there is a public organization United Donbass Foundation, which provides assistance to Donbass citizens in difficult life circumstances.
Citizens who have the status of a war disabled veteran (except from persons who had served in OUN and UPA).
Persons in difficult life circumstances (that fall into more than one category, have housing destroyed as a result of hostilities, have illnesses).
— copy of documents proving facts and arguments stated in the application.
The applicant can send the set of documents (scanned application and documents) via email (info@gum-centr.su) or through any post office of the state enterprise Pochta Donbassa.
The Fund’s Commission considers each application separately and then collectively decides on the amount of payment or the type of assistance, so it is highly recommended that you describe the complexity of your situation in the application and prove it with the appropriate documents.
In case you have difficulties while filling in the form for the aforesaid assistance, you may approach the Public Reception of the DPR Human Rights Ombudsman at the address: 34 Pushkina blvd., Donetsk, room 101, Monday to Friday from 10 am to 1 pm.
According to Article 17 of the Interim Order on Enforcement Proceedings of the Donetsk People’s Republic, approved by the Resolution of the Council of Ministers of the Donetsk People’s Republic of 31.05.2016 No. 7-37 (hereinafter referred to as the Order), enforcement action is carried out by the State Executive Service on the basis of enforcement documents. The bodies of the State Executive Service, which are part of the system of the Ministry of Justice of the Donetsk People’s Republic, are responsible for implementation of enforcement documents.
Execution of the court decision on visitation arrangements for one of the parents and the child is classified as execution of the decision, under which the debtor is obliged to personally perform certain actions or refrain from taking them.
General conditions for the implementation of decisions of this type are defined in Article 73 of the Procedure. In line with the aforementioned provision, after opening of an enforcement proceeding based on an enforcement document, obliging the debtor to perform certain actions, the state executor checks the execution of the decision. In the case of non-implementation of the court decision without good reason, the government executive imposes a penalty on the debtor and establishes a new deadline. In the case of a repeated non-implementation of the decision by the debtor without good reason, the government executive imposes a double penalty on him/her and turns to law enforcement bodies with a view to bringing the debtor to criminal responsibility in line with the legislation.
Thus, you need to contact the State Executive Service office at the place of residence of the former wife on the issue of implementation of this court decision. In case of non-fulfilment of the requirements of the state executive within the framework of the enforcement proceeding, the debtor will be subject to the above sanctions.
In this situation, you are entitled to obtain a permanent residence permit in the territory of the Donetsk People’s Republic, which is a document proving your identity and confirming the right of a person to reside permanently in the territory of the Donetsk People’s Republic, including receiving social benefits.
Undergo the identification procedure in accordance with the Order of the Ministry of Internal Affairs of the DPR No. 182. For this procedure, you must contact the Ministry of Internal Affairs of the DPR (local police station). There you will be asked to provide documents with photos that you have. In the absence of documents that can prove your identity, your relatives, neighbors or other persons (at least three) will be questioned. Based on their testimony, the act of identification is drawn up. The procedure is carried out during one month. If additional checks are necessary, the period is extended to two months.
Appeal to the court with a claim to confirm the fact of residence in the territory of the Donetsk People’s Republic as at 07.04.2014.
3) documents that confirm effecting of all payments established by law, or the original and a copy of the document on exemption from such payments.
The decision to issue or not to issue the permit is made within two months from the date of accepting the application. If additional checks are necessary, the period may be extended to three months.
other persons at the discretion of the Commission.
The material assistance is granted if the size of the average monthly total family income for the previous six months for each family member does not exceed five thousand two hundred rubles.
a certificate of family composition; a copy of work record book (if available).
other documents / certificates confirming that citizens are in difficult life circumstances (at the discretion of the Commission).
Please note that financial assistance in the amount of 1500 rubles is paid once every three months from the month of appeal per family, regardless of the number of persons in the family eligible for this assistance.
The material assistance is paid through the Central Republican Bank of the Donetsk People’s Republic and SE “Pochta Donbassa”.
According to Part 1 of Article 110 of the Criminal Executive Code of Ukraine (currently in force in the territory of the Donetsk People’s Republic by virtue of Resolution of the Council of Ministers of the Donetsk People’s Republic No. 9-1 dated 02.06.2014), convicts have the right to short visits of up to four hours and extended visits – up to three days. Short visits with relatives or other persons are held in the presence of a colony representative. Extended visits come with the right to live together with close relatives only (spouses, parents, children, adoptive parents, adopted children, siblings, grandfather, grandmother, grandchildren). Extended visits may be granted to spouses who lived together but did not register their marriage, provided that they have common minor children. The cost of the use of rooms for short and extended visits is paid for by convicts or their relatives or other persons at their own expense.
Since you and your husband have children in common, you can file an application for extended visits with the administration of the correctional facility.
The procedure for the transfer of convicts who expressed the desire to serve their sentences in the territory of Ukraine is regulated by the Decree of the Head of the Donetsk People’s Republic of 12.11.2015 No. 424 “On the transfer of convicted prisoners, who are under custody in penitentiary institutions of the Donetsk People’s Republic, and criminal files, kept in the courts and investigative bodies of the Donetsk People’s Republic, to Ukraine”.
The State Penitentiary Service of the Ministry of Justice of the Donetsk People’s Republic compiles the list of persons who have expressed a desire to serve their sentences in correctional facilities in the territory of Ukraine, based on appropriate statements by convicts. This list is submitted to the Ministry of Justice of the Donetsk People’s Republic for the state bodies to carry out all necessary checks. Finally, the procedure is coordinated with the competent authorities of Ukraine.
Thus, the convict must personally submit a request for his transfer to a correctional facility in the territory of Ukraine to the Head of the State Penitentiary Service of the Ministry of Justice of the Donetsk People’s Republic.
In accordance with Articles 15, 17 of the Law of the Donetsk People’s Republic of April 3, 2015 No. 30-INS “On the Human Rights Ombudsman in the Donetsk People’s Republic”, the Ombudsman considers complaints against decisions or actions (omission) of state bodies, local governments, officials, civil servants, if the applicant had previously appealed against these decisions or actions (omission) in judicial or administrative proceedings, but does not agree with the decisions taken on his/her complaint.
The complaint must be filed with the Ombudsman no later than a year after the day when the violation of the rights and freedoms of the applicant occurred or after the day when he/she became aware of the violation.
if the action (omission) had been subject to judicial or administrative proceedings.
Complaints filed with the Ombudsman are not subject to state duty.
Complaints submitted by citizens’ representatives must be accompanied by documents proving their authority.
The text of the complaint must be readable. Complaints made by hand must be written in clear, legible handwriting and have no corrections. It is prohibited to use obscene or offensive words or expressions in the text of the complaints.
It is not within the competence of the DPR Ombudsman to verify the accounts of a crime being prepared or committed, including corruption.
Dear citizens of the Donetsk People’s Republic, in the view to raise legal awareness the DPR Ombudsman’s Office provides you with clarifications on basic terms and notions, the established fee and the procedure for its exemption established by the Law of the Donetsk People’s Republic of 20 March 2015 No. 26-INS “On Court Fees” as amended and supplemented.
Court fee is a fee paid in cash or non-cash purportedly to cover costs for filing claims, appeals and complaints with the court, and also charged by the courts following consideration of the case, and for issuing documents.
Court fee payers are individuals, stateless persons, enterprises, institutions, organizations, other legal entities (including foreign ones), state bodies, local governments, other bodies, officials, organizations that do not have legal personality status, as well as private entrepreneurs.
17) for making a copy of a digital audio recording of the court session – 60 rubles for one CD.
16) applications for the protection of the rights of minors or underage persons in the event that in accordance with the law or an international treaty they are represented in court by the Ministry of Justice of the Donetsk People’s Republic or by the guardianship and trusteeship bodies or children’s affairs offices.
21) plaintiffs – on claims for the protection of consumer rights.
Legislation of the Donetsk People’s Republic may provide for other instances of exemption from court fees.
On 9 December 2016, a Decree of the Head of the Donetsk People’s Republic No. 211 “On Approving the Procedure for granting material assistance in monetary terms to particular categories of citizens of the Donetsk People’s Republic” dated 09.12.2016 came into force.
Persons injured as a result of hostilities in the territory of the Donetsk People’s Republic.
The family includes: husband, wife, children and adopted children under the age of 18 (full-time students under the age of 23 unless they have their own family).
The family does not include persons on complete state provision.
The maximum monthly average total family income for the previous six months per each family member must not exceed 5,200.00 Russian rubles.
The amount of material assistance is 1,500 Russian rubles for the applicant’s family (if the applicant is single – for the applicant).
Material assistance is provided once every three months from the date of application.
Material assistance is paid at the cash department of the Central Republican Bank of the Donetsk People’s Republic and SE “Pochta Donbassa”.
For the purpose of legal education in the field of human and civil rights and freedoms, forms and methods of their protection, as well as raising the legal awareness of the population, the Office of the Human Rights Ombudsman in the Donetsk People’s Republic informs about changes in legislation related to the signing of the Law of Ukraine On Ratification of Protocols.
On 30 October 2017, the President of Ukraine Petro Poroshenko signed the Law On Ratification of Protocols No. 15 and No. 16 to the 1950 European Convention on Human Rights and Fundamental Freedoms. By signing this law, Ukraine, through its representatives, has expressed its consent to a number of amendments to the existing Convention.
One of the innovations is the reduced period of application to the European Court of Human Rights. In accordance with Part 1 of Art. 35 of the Convention, the ECHR can accept a matter for processing provided that a citizen has exhausted all national remedies, as provided for by the generally accepted norms of international law. Previously, the period of application was six months from the date of the final decision on the case by the national court. Currently, based on the adopted Protocol No. 15, the aforementioned period of application has been reduced to four months.
Based on the above, we bring these changes to the attention of citizens who have expressed a desire to apply for the protection of their rights and legitimate interests to the ECHR, since the preparation of relevant documents and the application is now to be done within a shorter period.
Obviously, the reduction of the period of application to the ECHR will affect the quality of preparation of applicants. The legal reasoning of the plaintiff, stated in the claim, must be motivated, reasoned and supported by evidence, the preparation of which takes much time. Subsequently, the number of citizens who are going to apply to the ECHR will decrease by several times due to the reduced four-month period for applying to the ECHR.
Another change imposed by Protocol No. 15 is related to relinquishment of jurisdiction to the Grand Chamber.
In accordance with Art. 30 of the Convention, where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the Protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber (consisting of seven judges) may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber (consisting of seventeen judges), unless one of the parties to the case objects.
Earlier, a case could be referred to the Grand Chamber only in the case of mutual consent of the parties to the trial, and now, after the amendments made by Protocol No. 15, the relinquishment of jurisdiction does not require the consent of the plaintiff and the defendant and is at the discretion of the judges, which limits the expression of their will in this matter.
Protocol No. 16 to the Convention provides for the right of the High Courts and Tribunals of the High Contracting Party (Ukraine) to request from the ECHR advisory opinion on the principles relating to the interpretation or application of the rights and freedoms guaranteed by the Convention and its Protocols.
Part 2 of Art. 1 of Protocol No. 16 regulates that a court or tribunal requesting an advisory opinion may request such an opinion only in the context of the case before it.
In addition, this request must be motivated and include the necessary information, namely, the legal and factual circumstances of the case under consideration.
Also, in order to make a decision on whether or not to satisfy the request for an advisory opinion, a panel of five members of the Grand Chamber is formed.
It should be noted that the amendments will allow the national courts of Ukraine in the event of controversial issues in a particular case, to approach the ECHR for a reasoned explanation, based on the knowledge and experience of the international court.
Advisory opinions are explanatory by nature and are not binding, and therefore the application of the opinion is the right, and not the obligation of the court.
In our opinion, the ratified protocol will affect the quality of the work of the national courts of Ukraine in terms of issuing fair judgments.

matches:
Art. 246
Art. 4
Art. 44
Art. 44
Art. 434
Art. 53
Art. 35
Art. 30
Art. 1


In this plenary action in contract brought by a wife who seeks a money judgment for arrears in support payments due her under a separation agreement, the overriding issue is the proper interpretation of a provision of the agreement. Section 23 of the agreement specifically declares that the agreement is to survive any subsequent divorce decree obtained by either party, and it further provides that although the custody, spousal support and maintenance provisions of the separation agreement may be incorporated by reference into such a divorce decree, they are not to be merged within it. Some time following the separation, the husband obtained a bilateral Mexican divorce decree which incorporated those sections of the separation agreement but specifically declared that they were to survive the decree. Eventually, the wife deemed it necessary to seek an order of support in Family Court, Nassau County, for the $200 per week support and maintenance provided in the divorce decree pursuant to the terms of the separation agreement (see Family Ct. Act, § 422, subd. (b); § 461, subd. (b); § 466, subd. (c)). The husband countered with a request that the amount of support and maintenance be decreased, and, following issuance of several orders not pertinent to this appeal, Family Court ultimately decreased the amount of support and maintenance awarded by the divorce decree to $95 a week and issued a support order for that amount.
The wife then commenced this action in Supreme Court, Nassau County, seeking a money judgment in the amount of the difference between the support and maintenance payments established by the separation agreement and the reduced amount provided by the Family Court order. In response, the husband contended that pursuant to section 24 of the separation agreement, the modification by Family Court of the amount of support and maintenance due under the divorce decree served also as a modification of the separation agreement provisions pertaining to support and maintenance. Following a nonjury trial, Supreme Court ruled in favor of the husband, concluding that pursuant to section 24 of the separation agreement, the modification of the divorce decree by Family Court did in fact cause a similar modification of the separation agreement.
On the wife’s appeal, the Appellate Division, 70 A.D.2d 613, 416 N.Y.S.2d 327, reversed and ordered judgment in favor of plaintiff in the amount of $19,637, which had been stipulated to be the correct amount owed the wife if the separation agreement was not modified as a result of the Family Court order. The Appellate Division concluded that even if the husband were correct in his interpretation of the agreement, enforcement of such a provision would be improper since it comprised an attempt to confer jurisdiction upon Family Court by agreement of the parties. The husband now appeals to this court as of right, pursuant to CPLR 5601 (subd. (a), par. (ii)). We conclude that there should be an affirmance, although for a different reason than that expressed by the Appellate Division.
Section 24 of the separation agreement provides as follows: “In the event that any court of competent jurisdiction shall hereafter, by virtue of any statute, modify the terms hereof with respect to support and maintenance, such modification shall apply to this Agreement with the same force and effect as though it constituted the original terms hereof.” The husband contends that this provision should be interpreted as meaning that if any court of competent jurisdiction modifies the alimony and child support provisions of any divorce decree subsequently obtained, such shall also serve as a modification of the support and maintenance provisions of the separation agreement. Supreme Court agreed with that interpretation and held that pursuant to that provision the support and maintenance provisions of the separation agreement had been modified as a result of the Family Court order modifying the divorce decree, and thus there existed no disparity between the provisions of the agreement and the provisions of the Family Court support order. Since the wife’s claim was premised upon the existence of such a difference, Supreme Court ruled in favor of the husband and dismissed the complaint.
The Appellate Division, on the other hand, concluded that even if that interpretation of the contract was correct, it was invalid as an improper attempt to confer jurisdiction upon the Family Court by agreement between the parties, since Family Court lacks jurisdiction to vary the terms of a separation agreement, although it may in some cases vary the terms of a divorce decree or judgment of separation (see Family Ct. Act, §§ 422, 461, 466). While we agree with the ultimate result reached by the Appellate Division, we disagree with the analysis used to reach that result.
It is true, of course, that the Family Court is a court of limited jurisdiction which lacks the power to modify the terms of a separation agreement, as opposed to the terms of a divorce decree, and that this power cannot be conferred upon that court by agreement of the parties. Even as interpreted by the husband, however, the provision in issue simply does not attempt to confer jurisdiction upon the Family Court. The provision neither purports to nor could it change the jurisdiction of the Family Court. Rather, according to the husband, it provides instead that if a court with jurisdiction to modify a divorce decree into which the separation agreement has been incorporated but not merged, does so modify the support provisions of the divorce decree, then the separation agreement itself is to be modified accordingly.
Rather than attempting to confer jurisdiction upon the Family Court, section 24, as interpreted by the husband, would serve merely as a mutually agreed upon means of modifying the separation agreement to accord with the changes in the divorce decree. Although the parties could not have conferred subject matter jurisdiction upon the Family Court, no public policy precludes a prior agreement to extend the effect of any Family Court decision beyond the reaches which that decision is permitted by law. Certainly Family Court could not modify the agreement; the parties could, however, voluntarily agree that any modification of the decree would also serve as a modification of the agreement. Thus, were we to agree with the husband’s interpretation of section 24, we would reverse the order of the Appellate Division and reinstate the determination of Supreme Court. As it is, however, our examination of that section precludes us from adopting the interpretation proffered by the husband.
Section 24 of the separation agreement clearly does not provide that any modification of the support provisions of the divorce decree shall also be incorporated into the separation agreement. Rather, it states merely that if any court modifies “the terms hereof with respect to support and maintenance, such modification shall apply to this Agreement with the same force and effect as though it constituted the original terms hereof. The word “hereof” when used in a document patently refers to the document in which the term is used. Here, that document is the separation agreement. Thus, the provision speaks not to the situation in which a divorce decree is modified by a court of competent jurisdiction, but rather to the situation in which a part of the separation agreement itself is set aside by a court of competent jurisdiction (see Christian v. Christian, 42 N.Y.2d 63, 396 N.Y.S.2d 817, 365 N.E.2d 849, supra ). In the instant case, no court has ever modified the agreement, and thus the section is inapplicable to this dispute.
It has been suggested that, since the separation agreement has been incorporated into the divorce decree, section 24 of the agreement is now also a part of the decree and thus the word “hereof” may be deemed to refer to the decree as well as to the agreement. We find such a strained interpretation of an unambiguous provision to be unpersuasive. When parts of a separation agreement are incorporated into but not merged within a divorce decree, the separation agreement continues in effect as a separate and independent contractual arrangement between the parties (Goldman v. Goldman, 282 N.Y. 296, 26 N.E.2d 265, supra ; see 2 Foster and Freed, Law and the Family, § 28:53).
Thus, a change in the divorce decree cannot modify the separation agreement absent a clear expression by the parties of such an intent. Even were we to agree that the term “hereof” refers to the separation agreement incorporated within the divorce decree as opposed to the separation agreement qua contract, the result would be no different in this case since the same logic would require that the “agreement” which is to be modified accordingly must also be the agreement within the decree, rather than the agreement which survives the decree. Rather than follow such a tortuous path, we consider it preferable to construe the word “hereof” in section 24 as a reference to the contract and not to the decree.
Nor does this interpretation of section 24 render that provision meaningless. It is, of course, true, that the courts of this State enjoy only limited authority to disturb the terms of a separation agreement (compare Goldman v. Goldman, 282 N.Y. 296, 26 N.E.2d 265, supra, with Christian v. Christian, 42 N.Y.2d, supra, at pp. 71-73, 396 N.Y.S.2d 817, 365 N.E.2d 849. Moreover, any attempt to confer upon a court of any jurisdiction within the United States broad powers to modify the terms of a separation agreement might well run afoul of constitutional limitations upon the State’s power to tamper with vested contractual rights. Courts of other nations, however, are not always so limited, and it is evident that the parties to this agreement contemplated the possibility that jurisdiction over the agreement might subsequently be asserted by foreign courts. Were it not for the existence of section 24, the enforceability in this State of any modification of the support and maintenance provisions of the separation agreement by a foreign court of competent jurisdiction would nonetheless be subject to the somewhat uncertain principles of comity. Section 24, however, makes such modifications to the agreement an effective part of the agreement in this State not because of whatever degree of respect we may bestow upon foreign judgments, but rather because the parties have elected to make any such judicial modifications a part of their agreement. As such, the enforceability of such provisions depends on general principles of contract and family law, not upon the vagaries of comity.
Moreover, our interpretation of section 24 is buttressed by an examination of section 23 of the separation agreement, which specifically declares that the support and maintenance provisions of the separation agreement are to be read into the divorce decree, but are not to be merged within that decree, and are instead to survive it. Were we to agree with the husband’s interpretation of section 24, the specific declaration contained in section 23 would be rendered ineffective, for the net result of the husband’s interpretation of section 24 would be to merge the support and maintenance provisions within the divorce decree despite the contrary mandate of section 23. We refuse to interpret section 24 in such a way as to negate the clear and unambiguous intent expressed in section 23. Hence, we conclude that the separation agreement does not provide that any modification of the support and maintenance provisions of the decree will serve to modify the agreement as well, and the wife is thus entitled to recover upon her contractual right to support and alimony as provided by the original terms of the separation agreement.
Accordingly, the order appealed from should be affirmed, with costs.
Do you know someone in need of spousal support, like the case above? Refer them ot Stephen Bilkis and Associates. They are known for successfully handling family cases of all sorts like paternity, child and spousal support, child custody and visitation, guardianship and others.


On Wednesday, the Supreme Court of New Jersey articulated the test to be used in determining whether a worker is an independent contractor or employee for purposes of the state’s Wage Payment Law and Wage and Hour Law. Any company that contracts with independent contractors in New Jersey should take note of the decision, which found that the test for resolving wage payment and wage and hour claims should be the same as the challenging “ABC” test used in New Jersey unemployment proceedings.
New Jersey’s highest court issued the decision in response to a certified question from the U.S. Court of Appeals for the Third Circuit, which asked what test New Jersey would apply to determine an employee’s status for purposes of the state’s Wage Payment Law, N.J.S.A. §§ 34:11-4.1 to -4.14, and Wage and Hour Law, N.J.S.A. §§ 34:11-56a to -56a(38). The Supreme Court of New Jersey determined that the same “ABC” test derived from the New Jersey Unemployment Compensation Act, N.J.S.A. § 43:21-19(i)(6), should govern.
The case was brought by a group of delivery drivers that contracted with Sleepy’s, LLC to deliver mattresses. The drivers claimed they were misclassified as independent contractors pursuant to New Jersey’s state wage laws, the Family and Medical Leave Act, and the Employee Retirement Income Security Act (ERISA), but the U.S. District Court for the District of New Jersey disagreed. See Hargrove v. Sleepy’s LLC, 2012 U.S. Dist. LEXIS 43949 (Mar. 29, 2012) (unpublished). To determine the appropriate classification of the drivers, that court applied the common-law, multi-factor test used in ERISA cases as outlined by the U.S. Supreme Court in Nationwide Mutual v. Darden, 503 U.S. 318, 112 S. Ct. 1344 (1992). The court emphasized that the evidence “overwhelmingly show[ed] that the plaintiffs were independent contractors” in granting summary judgment to Sleepy’s. According to the U.S. District Court opinion, the three named plaintiffs had set up their own business entity, entered into an independent contractor agreement with Sleepy’s, maintained their own business records, hired their own workers, made federal tax filings as an independent business entity, purchased their own trucks, and paid their own expenses.
On appeal, however, the Third Circuit concluded that neither the Supreme Court of New Jersey, nor any other New Jersey appellate court, had ever determined which employment test applied to claims arising under New Jersey’s Wage Payment Law or the Wage and Hour Law. See Hargrove v. Sleepy’s, LLC, 2013 U.S. App. LEXIS 26204 (May 22, 2013). That court accordingly certified the question to New Jersey’s highest court and noted that New Jersey courts had applied at least four different tests to the classification question in other contexts.
New Jersey’s Wage Payment Law defines “employee” as “any person suffered or permitted to work by an employer, except that independent contractors and subcontractors shall not be considered employees.” N.J.S.A. § 34:11-4.1(b). Neither the text of the act nor any implementing regulations, however, offer guidance on how an “independent contractor” is defined. The Wage and Hour Law defines “employee” as “any individual employed by an employer.” N.J.S.A. § 34:11-56a(1)(h). The New Jersey Department of Labor’s implementing regulation for the Wage and Hour Law references the “ABC” classification test used in New Jersey’s Unemployment Compensation Act. N.J.A.C. § 12:56-16.1.
(C) Such individual is customarily engaged in an independently established trade, occupation, profession or business. N.J.S.A. § 43:21-19(i)(6).
Citing the presumption of employee status and the purposes of the Unemployment Compensation Act, New Jersey courts have found it difficult for purported employers to meet all three prongs of the ABC test when classification is at issue.
The court opined that the ABC test would provide for “more predictability” on the classification question than the economic realities test, which results in more of a case-by-case application of factors. The court’s decision raises a number of questions. Does the application of the ABC test in this context lower the bar too low? Does the decision adequately consider the effect of having one test apply for federal wage law purposes and another, more restrictive test apply for New Jersey wage law purposes? Are some workers who are correctly classified as independent contractors for purposes of federal employment laws now “employees” for purposes of New Jersey wage laws? Does such a decision impermissibly impede interstate commerce?
Regardless of your opinion about the viability of the decision, any company that contracts with independent contractors in New Jersey should coordinate with its counsel to determine the impact of this decision on existing relationships. Companies should undertake a privileged review of those relationships to confirm that the relationships continue to constitute independent contractor relationships for purposes of New Jersey’s wage laws.


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ANA MARIA C. MANGUERRA, COMPLAINANT, VS. JUDGE GALICANO C. ARRIESGADO, REGIONAL TRIAL COURT, BRANCH 18, CEBU CITY; JUDGE ANACLETO L. CAMINADE, RTC, BRANCH 6, CEBU CITY; CLERK OF COURT VII JEOFFREY S. JOAQUINO, RTC-OCC, CEBU CITY; AND BRANCH CLERK OF COURT MYRNA V. LIMBAGA, RTC, BRANCH 6, CEBU CITY, RESPONDENTS.
The complainant alleges, in sum, that Special Proceeding No. 1700-R, pending with Branch 6 of the Regional Trial Court of Cebu City, was irregularly unloaded and clandestinely re-raffled to Branch 23 of the same court. Complainant argues that the irregular raffling of Special Proceeding No. 1700-R to Branch 23 was done to favor the oppositors therein.
In their joint Comment, respondents, Branch 6 Presiding Judge Anacleto L. Caminade and Branch 6 Clerk of Court Myrna V. Limbaga, averred that Special Proceeding No. 1700-R was unloaded as a consequence of the re-raffle of Special Proceeding No. 916-R, entitled, “Intestate Estate of Vito Borromeo” (Borromeo case) to Branch 6 in view of Judge Antonio Echavez’s inhibition. Respondents explained that when a judge recuses himself from a case, it shall be assigned to another branch by regular raffle, and the branch to which it is assigned will then unload a case of similar nature and status to the judge who inhibited himself without need of raffle. This, according to them, is the established practice in the Cebu City Regional Trial Court. Hence, respondent Limbaga unloaded Special Proceeding No. 1700-R to Branch 8, presided by Judge Echavez in exchange for Special Proceeding No. 916-R.
Respondent Executive Judge Galicano C. Arriesgado averred in his Comment that prior written notice of the date and time of re-raffle of the inhibited case is not given to the parties. A written order is also not a mandatory requirement to unload a particular case from the receiving branch of the inhibited case and the Presiding Judge thereof may just verbally direct his Branch Clerk to unload a case of the same kind and status. Nonetheless, if only to clear once and for all any doubts in complainant’s mind, respondent Executive Judge and the Raffle Committee would be more than willing to conduct a re-raffle with prior notice to the complainant and her counsel.
The Office of the Court Administrator recommended that the administrative complaint be referred to an Associate Justice of the Court of Appeals for investigation, report and recommendation.
In the meantime, respondent Branch Clerk Myrna V. Limbaga tendered her resignation from the service. The OCA recommended that the same be accepted without prejudice to the outcome of the instant administrative complaint, which recommendation was noted by the Court in a Resolution dated February 11, 2003.
Subsequently, the Court, upon the recommendation of the OCA, referred this case to Associate Justice Josefina G. Salonga of the Court of Appeals for evaluation, report and recommendation.
During the investigation, complainant manifested that she was no longer interested in pursuing the case and that she believed respondents are not administratively liable. She further declared that she is no longer willing to testify against respondents.
Hence, Justice Salonga recommended the dismissal of the complaint against respondents.
In administrative proceedings, the complainant has the burden of proving by substantial evidence the allegations in their complaints. As observed by the Investigating Justice, without the testimony of the complainant and her other material witnesses, the allegations of the complaint stand unsubstantiated. In the absence of contrary evidence, as in this case, what will prevail is the presumption that the respondents regularly performed their duties.
…The Rules, even in an administrative case, demand that, if the respondent judge should be disciplined for grave misconduct or any graver offense, the evidence against him should be competent and should be derived from direct knowledge. The Judiciary to which the respondent belongs demands no less. Before any of its members could be faulted, it should only be after due investigation and after the presentation of competent evidence, especially since the charge is penal in character.
The absence of any evidence showing that respondents acted culpably reduces the charges against them into a mere indictment. We cannot, however, give credence to charges based on mere suspicion and speculation.
WHEREFORE, in view of all the foregoing, the complaint is DISMISSED for lack of merit.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
 Lorena v. Encomienda, 362 Phil. 248 (1999); Cortes v. Agcaoili, 335 Phil. 848 (1998).
 Oniquit v. Binamira-Parcia, 358 Phil. 1 (1998).
 Raquiza v. Castaneda, Jr., A.M. No. 1312-CFI, 31 January 1978, 81 SCRA 235.
 OCA v. Judge Filomeno Pascual, 328 Phil. 978 (1996).
 Lambino v. De Vera, 341 Phil. 62 (1997).

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text:
Law Web: Whether Two-Tier arbitration is permissible in India?
Whether Two-Tier arbitration is permissible in India?
C.A. Nos.2562 of 2006 etc.
September, 2001 by the arbitrator in London.
M/S. CENTROTRADE MINERALS & METAL INC.
Page 1 of 29Leave granted.
shall pay and bear their own costs.
judgment disposing of the appeals in terms of the signed judgment.
the Hon’ble the Chief Justice for constitution of a larger Bench.
result of this second arbitration will be binding on both the parties.
permissible under the laws of India?
what is the relief that Centrotrade is entitled to?
dragged on for about three months.
the nature of an appeal against the ‘arbitration result’ in India.
enforcing that ‘arbitration result’ should such enforcement become necessary.
Conciliation Act, 1996 (for short ‘the A&C Act’).
in Comparative International Commercial Arbitration.
(iv) may be challenged in the courts of the place of arbitration.
is a binding decision; and (iv) An award may be partial.
arbitration award given by the arbitral panel of the Indian Council of Arbitration.
learned counsel for Hindustan Copper Limited (hereafter referred to as ‘HCL’).
HCL the second part of Clause 14 of the contract is contrary to the laws of India.
otherwise contrary to public policy.
ramifications for international commercial contracts with an Indian party.
Contract Practices on the Work of its Third Session.
exclude such practice although it was not used in all countries.
the law in India through the A&C Act is quite different.
Arbitrators, (para 3-35) at p.276 and para 3-106 at p.290.
Amin Merchant v. Bipin M. Gandhi, 2005 (Suppl.) Arb. LR 337, Dhansukh K. Sethia v.
Ltd. v. Radheshyam B. Khandelwal, 2008 (1) Bom C.R. 768, ANS Pvt. Ltd. v. Jayesh R.
10 Steel Authority of India Ltd. v. Engineers Project Ltd., 2014 SCC Online Del 2314, U.P.
provisions of the Code were inapplicable.
unity and are to be regarded as one legal proceeding.
the career of the suit.
otherwise.” [Emphasis supplied by us].
sub-section (1) of Section 34 and then to Sections 35 and 36 of the A&C Act.
the same manner as if it were a decree of the court.
contention of learned counsel does not arise.
their mutual decision and accepting the validity of their agreement.
paragraphs (2) and (3) of this article.
major difficulty in harmonising international arbitration legislation.
within which) recourse against an arbitral award may be made.
commodity trades).” [Emphasis supplied by us].
cannot be an ‘appeal’ provision in the agreement between the contracting parties.
Page 19 of 29the view that an award is not a waste paper only because it has not been enforced.
effects partition of immovable property exceeding the value of Rs.100/-?
disputed.” [Emphasis supplied by us].
the Grain and Feed Trade Association, London was considered and upheld.
implicit acceptance of the general principle of two-tier arbitrations.
Page 23 of 29the subsequent decisions including the recent Reliance Industries Ltd. v.
Union of India28.” [Emphasis supplied by us].
comparatively low in the third category, high in second and higher in first.
that has to be generally resorted to.” [Emphasis supplied by us].
dispute. This choice is and should be binding on the arbitration tribunal.
32 Chapter 17 Determination of Applicable Law in Julian D. M. Lew, Loukas A.
clauses mutually agreed upon by the parties.
agreement between the parties does not fall under any of these situations.
question which relates to the enforcement of the appellate award.

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Justia › US Law › Case Law › Minnesota Case Law › Minnesota Court of Appeals Decisions › 2007 › State of Minnesota, Respondent, vs. John Frederick Kier, Appellant.
State of Minnesota, Respondent, vs. John Frederick Kier, Appellant.
State of Minnesota, Respondent, vs. John Frederick Kier, Appellant. A06-230, Court of Appeals Unpublished, August 14, 2007.
Minn. Stat. § 480 A. 08, subd. 3 (2006).
Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Ross, Judge.
This appeal requires us to determine whether a 2006 amendment to the first-degree driving-while-impaired (DWI) sentencing statute, Minnesota Statutes section 169 A. 28, applies retroactively to a 2005 DWI conviction. The amendment removed the requirement to impose a consecutive sentence for first-degree DWI when the driver is on probation or is serving an executed sentence for another first-degree DWI conviction. John Kier appeals the consecutive nature of his sentencing for felony first-degree DWI. The district court sentenced Kier to prison in November 2005 and ordered that the sentence run consecutive to a prison sentence he was then serving for felony first-degree test refusal. Kier argues that the 2006 amendment applies retroactively and mandates that his sentences run concurrently. Kier also argues that the district court failed to properly calculate his jail credit. Because the first-degree DWI-sentencing statute as amended would not prohibit consecutive sentencing, and because the amendment has no retroactive effect, we affirm.
The facts are not in dispute. John Kier has been convicted of 25 DWI-related offenses, including two felony and four misdemeanor or gross-misdemeanor DWI offenses since 1995. See State v. Kier, 678 N.W.2d 672, 674 (Minn. App. 2004) (detailing some of Kier's criminal history). This appeal relates to the sentence imposed for his twenty-sixth conviction. In August 2002, police in Polk County arrested Kier for driving while impaired and with a cancelled license. The district court convicted Kier of first-degree refusal to submit to testing and driving after cancellation, and in March 2003, it sentenced him to an executed term of 66 months' imprisonment on the first-degree refusal conviction and to 12 months' imprisonment on the driving-after-cancellation conviction, to be served consecutively.
In January 2003, just two days after being convicted for his Polk County offenses, Fond du Lac police officers found Kier asleep behind the wheel of a car stopped in the travel lane of a street at one o'clock in the morning, with the engine running, the car in drive, and Kier's foot on the brake. Kier registered a .281 alcohol concentration on a preliminary breath test, but he refused to submit to a formal breath test after his arrest.
The state charged Kier with first-degree DWI based on his prior DWI-related convictions, and with first-degree test refusal. Following a bench trial in April 2005, the district court found Kier guilty of both counts. In November 2005, the district court sentenced Kier to 36 months' imprisonment to be served consecutive to his March 2003 sentence. This appeal follows.
(1) . . . arising out of separate courses of conduct; (2) . . . when the person, at the time of sentencing, is on probation for, or serving, an executed sentence for a [DWI conviction] . . . and the prior sentence involved a separate course of conduct; or (3) [that are accompanied by] another offense arising out of a single course of conduct that is listed in subdivision 2, paragraph (e), when the person has five or more qualified prior impaired driving incidents within the past ten years.
Minn. Stat. § 169 A. 28, subd. 1 (2004). The legislature amended the statute, effective June 2, 2006, by adding subdivision 1(b) as an exception to the mandatory consecutive sentencing requirement of now-designated subdivision 1(a). 2006 Minn. Laws ch. 260, art. 2, § 4, at 735-36, 829. The amendment provides that "[t]he requirement for consecutive sentencing . . . does not apply if the person is being sentenced to an executed prison term for a violation of section 169 A. 20 (driving while impaired) under circumstances described in section 169 A. 24 (first-degree driving while impaired)." Minn. Stat. § 169 A. 28, subd. 1(b) (2006).
Kier construes the amendment to mandate concurrent sentencing for first-degree DWI convictions. He also argues that the amendment applies retroactively to his 2005 conviction and sentencing. Neither contention survives a reading of the plain language of the amendment.
We review statutory construction and interpretation of the sentencing guidelines de novo. State v. Holmes, 719 N.W.2d 904, 907 (Minn. 2006). We give effect to a statute's plain meaning when its language is clear and unambiguous. State v. Bluhm, 676 N.W.2d 649, 651 (Minn. 2004). The amendment does not mandate concurrent sentences for felony first-degree DWI convictions; it merely makes consecutive sentencing discretionary: The "requirement for consecutive sentencing in paragraph (a) does not apply." Minn. Stat. § 169 A. 28, subd. 1(b) (emphasis added); see also Holmes, 719 N.W.2d at 909 n.9 (noting that "[s]ection 169 A. 28 has been amended to allow concurrent sentencing" (emphasis added)). Additionally, the postamendment sentencing guidelines deem felony first-degree DWI offenses as eligible for permissive consecutive sentences. Minn. Sent. Guidelines II.F, VI. So even if the amendment applied retroactively, the district court retained discretion to impose a consecutive prison sentence for Kier's April 2005 conviction.
We also do not read the amendment to apply retroactively. Absent a clear and manifest intent by the legislature, statutes are presumed to operate prospectively only. Minn. Stat. § 645.21 (2006). The amendment provides no indication of an intent for retroactive application. The legislation that amends section 169 A. 28 also amends eight other sections of chapters 169 and 169A. 2006 Minn. Laws ch. 260, art. 2, §§ 1-14, at 733-40. For each of the other provisions, the legislation indicates an effective date of August 1, 2006, and expressly states that the provision applies to offenses that occur after that date. Id. By contrast, the legislature determined that the effective date of the amendment to the sentencing provision is "the day following final enactment," and it does not include language that directs its application to offenses committed after the effective date. Id. at 735. The reason for the distinction is obvious. The unamended portion of the sentencing statute already provides that the court shall impose consecutive sentences if the defendant, "at the time of sentencing," is then serving an executed sentence for a prior DWI conviction. Minn. Stat. § 169 A. 28, subd. 1(a). The statute, both before amendment and as amended, applies when a defendant "is being sentenced." Id., subd. 1(b). The amendment included no language directing its application to offenses committed after the effective date, and so by its terms the statute, as amended, continues to apply "at the time of sentencing" to a defendant who "is being sentenced." The amendment was not in effect at the time of sentencing when Kier was being sentenced, and it therefore does not apply to his sentencing.
In a pro se supplemental brief, Kier argues that he is entitled to more jail credit than he requested and received at the sentencing hearing, covering the time during which he was incarcerated for the Polk County convictions. A defendant is entitled to jail credit only for time spent in custody in connection with the offense for which the sentence is imposed. Minn. R. Crim. P. 27.03, subd. 4(B); State v. Bradley, 629 N.W.2d 462, 464 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001). "[W]hen a current offense is sentenced consecutive to a prior offense for which the offender is already serving time in a prison or jail, no jail credit shall be awarded on the current offense." Minn. Sent. Guidelines cmt. III.C.03. Kier is not entitled to additional jail credit.


text:
By Patrick V. Hess Friday, July 07th 2017 05:30:39 AM .
By Patrick V. Hess Saturday, July 08th 2017 01:00:33 AM .
By Patrick V. Hess Friday, July 07th 2017 20:27:51 PM .
By Patrick V. Hess Friday, July 07th 2017 19:58:09 PM .
By Patrick V. Hess Friday, July 07th 2017 22:06:37 PM .
By Patrick V. Hess Thursday, July 06th 2017 16:13:17 PM .
By Patrick V. Hess Friday, July 07th 2017 06:27:35 AM .
By Patrick V. Hess Thursday, July 06th 2017 23:16:48 PM .
By Patrick V. Hess Friday, July 07th 2017 13:39:54 PM .
By Patrick V. Hess Friday, July 07th 2017 01:11:27 AM .

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§ 161-2 Definitions and word usage.
§ 161-4 Dumping; use of public receptacles for waste from private property.
§ 161-5 Village to be collector; exceptions.
§ 161-6 Materials to be disposed of by person in control of premises.
§ 161-8 Precollection procedures; containers.
§ 161-9 DPW collection procedures.
§ 161-12 Private Sanitation Licensing Committee.
§ 161-13 Licenses from other communities.
§ 161-14 Fees for licensee licensed in other community.
§ 161-15 Licensing of vehicles licensed in other community.
§ 161-18 Granting of license.
§ 161-19 Refusal, suspension and revocation of license.
§ 161-20 Recordkeeping by Committee required.
§ 161-21 Issuance of licenses.
§ 161-22 Surrender of plates.
§ 161-23 Identification of licensed vehicles.
§ 161-24 Transfer of vehicle license.
§ 161-25 Owner's and vehicle licenses fees.
§ 161-28 Disposal within village limits; restrictions.
§ 161-30 Penalties for offenses.
Sewers — See Ch. 150.


text:
Chapter II. The name and titles of the Holy Spirit.
Chapter III. Divine nature and personality of the Holy Spirit proved and vindicated.
Chapter IV. Particular works of the Holy Spirit in the first or old creation.
Chapter V. Way and manner of the divine dispensation of the Holy Spirit.
Chapter I. Particular operations of the Holy Spirit under the Old Testament preparatory for the New.
I. Extraordinary Works of the Spirit.
II. Ordinary Works of the Spirit.
1. In respect to political things.
2. In respect to moral virtues.
3. In respect to natural abilities.
4. In respect to the intellect.
Chapter II. General dispensation of the Holy Spirit with respect to the new creation.
Chapter III. Work of the Holy Spirit with respect to the head of the new creation - the human nature of Christ.
Chapter IV. Work of the Holy Spirit in and on the human nature of Christ.
Chapter V. The general work of the Holy Spirit in the new creation with respect to the members of that body of which Christ is the head.
Chapter II. Works of the Holy Spirit preparatory to regeneration.
Chapter III. Corruption or depravation of the mind by sin.
Chapter V. The nature, causes, and means of regeneration.
Chapter VI. The manner of conversion explained in the instance of Augustine.
Chapter I. The nature of sanctification and gospel holiness explained.
Chapter II. Sanctification is a progressive work.
Chapter III. Believers are the only object of sanctification, and subject of gospel holiness.
Chapter IV. The defilement of sin, what it consists in, with its purification.
Chapter V. The filth of sin is purged by the Spirit, and the blood of Christ.
Chapter VI. The positive work of the Spirit in the sanctification of believers.
Chapter VII. Of the acts and duties of holiness.
Chapter VIII. Mortification of sin, the nature and causes of it.
Chapter I. Necessity of holiness from the consideration of the nature of God.
Chapter II. Eternal election is a cause of and motive for holiness.
Chapter III. Holiness is necessary from the commands of God.
Chapter IV. Necessity of holiness from God's sending Jesus Christ.
Chapter V. Necessity of holiness from our condition in this world.
Chapter III. Various convincing external arguments for divine revelation.
Chapter IV. Moral certainty, as the result of external arguments, is insufficient.
Chapter V. Divine revelation itself is the only foundation and reason of faith.
Chapter VII. Inferences from the whole — Some objections answered.
Appendix to Book VI — Part I.
Book VI. Part II. UNDERSTANDING THE MIND OF GOD.
Chapter III. Other testimonies pleaded in confirmation of the same truth.
Chapter IX. Ecclesiastical Helps in the interpretation of the Scripture.
Chapter I. The use of prayer, and the work of the Holy Spirit in it.
Chapter II. Zec 12.10 explained and vindicated.
Chapter III. Gal 4.6 explained and vindicated.
Chapter IV. The nature of prayer — Rom 8.26 explained and vindicated.
Chapter V. The work of the Holy Spirit as to the matter of prayer.
Chapter VI. What the due manner of prayer consists in.
Chapter VIII. The duty of external prayer by virtue of a spiritual gift, explained and vindicated.
Chapter IX. Duties inferred from the preceding discourse.
Chapter X. Of mental prayer as pretended to by some in the Church of Rome.
Analysis of the first treatise.
Analysis of the second treatise.
A DISCOURSE — OF THE HOLY SPIRIT AS A COMFORTER.
Chapter II. General properties of the office of a comforter.
Chapter IV. Inhabitation of the Spirit is the first thing promised.
Chapter VI. The Spirit is a seal, and how.
Chapter VII. The Spirit is an earnest, and how.
The Application of the Foregoing Discourse.
A DISCOURSE — OF SPIRITUAL GIFTS.
Chapter I. Spiritual gifts, their names and meaning.
Chapter II. Differences between spiritual gifts and saving grace.
Chapter III. Of extraordinary gifts and offices; first, of offices.
Chapter IV. Extraordinary spiritual gifts, 1Cor 12.4-11.
Chapter V. The origin, duration, use, and end, of extraordinary spiritual gifts.
Chapter VIII. Of the gifts of the Spirit with respect to doctrine, worship, and rule.

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CARIBOU COUNTY; CARIBOU COUNTY SHERIFF'S DEPARTMENT; RIC L. ANDERSON, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; MICHAEL HADERLIE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; BROCK LOPEZ, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; HEATH S. DOWNS; BRANDY BREDEHOFT; JUDY PROBART LONG; JODI SUTER; BRETT SMITH; AND JOHN DOES 1-10, DEFENDANTS.
Before the Court are Motions for Attorney Fees (Dkts. 161, 163) by Defendant Smith and Defendants Caribou County, the Caribou County Sheriff's Department, Ric L. Anderson, Michael Haderlie, Brock Lopez, Heath S. Downs, Brandy Bredehoft, Judy Probart Long, and Jodi Suter (collectively, County Defendants). The Motions are fully briefed and at issue. The Court has determined that oral argument would not significantly assist the decisional process and will therefore consider the matters without a hearing. Being familiar with the record and having considered the parties' briefing, the Court will deny the Motions (Dkts. 161, 163), for reasons set forth in this decision.
On August 25, 2009, Chrystal Rhea Bannister committed suicide while in custody at Caribou County jail. Plaintiffs Van Orden, Bannister, and Waleske -- Chrystal's personal representative and parents -- sued Caribou County and a number of its employees, as well as the County jail's contracted physician's assistant, Brett Smith. Plaintiffs alleged negligence and constitutional violations under 42 U.S.C. § 1983, among other claims. The County Defendants, Defendant Smith, and Plaintiffs each moved for summary judgment. On June 8, 2012, the Court entered its Memorandum Decision and Order (Dkt. 154) granting summary judgment to Defendants, and denying summary judgment to Plaintiffs.
Defendants now move for attorney fees (Dkts. 161, 163).
A court may award reasonable attorney fees and costs to the prevailing party in an action brought under 42 U.S.C. § 1983. 42 U.S.C. § 1988(b). The parties here do not dispute that Defendants prevailed on motions for summary judgment. However, where defendant is the prevailing party, § 1988 only allows attorney fees for those claims found to be "frivolous, unreasonable, or without foundation." Fox v. Vice, 131 S.Ct. 2205, 2213 (2011) (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)). In Fox v. Vice, the Supreme Court noted that one or more reasonable allegations will not immunize a plaintiff against attorney fees for frivolous claims also in the complaint. Id. at 2214. Thus the Court must consider whether any of Plaintiffs' claims were frivolous.
In determining whether claims were frivolous so as to warrant attorney fees, the district court must evaluate the claims at the time the complaint was filed. Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1060 (9th Cir. 2006). This means the court must avoid concluding that a claim was unreasonable or unfounded simply because it ultimately failed. Christiansburg, 434 U.S. at 421.
In this case, Defendants brought a motion to dismiss the initial complaint, for failure to state a claim on which relief could be granted. Motion, Dkt. 23. After considering the complaint and parties' oral and written arguments, the Court denied the motion.*fn1 Order on Mot. Dism., Dkt. 47. Thus, accepting the factual allegations as true, the Court concluded that the initial complaint stated a plausible claim for relief. Consistent with that decision, the Court now finds that Plaintiffs' initial claims, although ultimately unsuccessful, were not unfounded.
Indeed, the Court's decision granting summary judgment*fn2 to Defendants was based on careful review of the record developed through months of discovery. Order on Mots. for Summ. Jmt., Dkt. 154. In that decision, the Court concluded that Plaintiffs failed to show that a genuine issue of fact remained to support their claims of deliberate indifference to Crystal Bannister's constitutional rights. Because those constitutional claims failed, the Court also dismissed the remaining claims premised on a successful deliberate indifference claim: the institutional claims under Monell v. Dept. of Soc. Svcs. of New York City, 436 U.S. 658 (1978), and the claim -- added in the amended complaint -- for deprivation of familial rights. First Am. Compl., Dkt. 52.
Although the record left no genuine material issue of fact for trial, the Court cannot conclude that Plaintiffs' claims were frivolous or unreasonable at the time the complaint and amended complaint were filed. Arguing otherwise, Defendants contend that Plaintiffs' suit was plainly at odds with the Ninth Circuit's holding in Simmons v. Navajo County, Ariz., 609 F.3d 1011 (9th Cir. 2010). In Simmons, the Ninth Circuit considered an action against various jail personnel, by parents of a pretrial detainee who committed suicide while in custody. Id. The Simmons court held that, to establish deliberate indifference, a plaintiff must show that defendants were subjectively aware of a serious medical need, but disregarded it. Id. at 1017-18. Mere imprudence or negligence does not suffice. Id. at 1020.


Luguin-Rodriguez now argues that the district court erred in not granting him the downward departure that was offered to other similarly situated defendants but that was not offered to Luguin-Rodriguez prior to his entering a guilty plea.
It is well-settled in this circuit that the court of appeals lacks jurisdiction to review a sentencing court's discretionary refusal to depart from the Sentencing Guideline's sentencing range in a given case unless the refusal to depart was based upon an impermissible factor such as race or gender, or the district court incorrectly believed it did not have authority to depart under the Sentencing Guidelines. See United States v. Guidry, 199 F.3d 1150, 1161 (10th Cir. 1999); see also United States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998) ("[The court] of appeals cannot exercise jurisdiction to review a sentencing court's refusal to depart from the sentencing guidelines except in the very rare circumstance that the district court states that it does not have the authority to depart from the sentencing guidelines range for the entire class of circumstances proffered by the defendant."); United States v. Rowen, 73 F.3d 1061, 1063 (10th Cir. 1996) ("We have jurisdiction to review a district court's refusal to depart downward only when 'the district court refused to depart because it erroneously interpreted the Guidelines as depriving it of the power to depart based on the proffered circumstances . . . '") (quoting United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir. 1993)). We will not find that the district court was unaware of its discretion to depart downward from the Guidelines unless the judge's language "unambiguously states that the judge does not believe he has authority to downward depart." United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir. 1994); see also id. ("[W]e treat ambiguous statements made by district judges as though the judge was aware of his or her legal authority to depart but chose instead, in an exercise of discretion, not to depart."). When the court is silent as to its discretionary authority, we assume that the district court knew that it possessed discretion to depart but declined to do so. See Rowen, 73 F.3d at 1063 ("We do not assume that silence indicates ignorance").
Here, a review of the record does not reveal any unambiguous statement by the district court that it lacked discretion to downward depart from the Sentencing Guidelines. The district court reviewed the submissions of both parties and determined that the Sentencing Guidelines should be followed. Under these circumstances, this court simply cannot conclude that the district court erroneously believed that it lacked discretionary authority to depart from the Guidelines in this case. Accord Rowen, 73 F.3d at 1063. We must, therefore, conclude that we lack jurisdiction to review the district court's decision. See Rodriguez, 30 F.3d at 1319 ("Absent such a misunderstanding on the sentencing judge's part, illegality or an incorrect application of the guidelines, we will not review the denial of a downward departure.") (citing United States v. Garcia, 919 F.2d 1478, 1481 (10th Cir. 1990)).
For the foregoing reasons, we DISMISS Luguin-Rodriguez's appeal of the district court's sentencing decision.
**.** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
1. 1 Based upon the pre-sentence report, Luguin-Rodriguez was subject to a Sentencing Guidelines range of 70 to 87 months. See Appellee's Brief at 3. The district court sentenced him to 70 months, the lowest available sentence within the applicable guideline range.
Under 18 U.S.C. §3553(b), the sentencing court may impose a sentence outside the range established by the applicable guidelines, if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines that should result in a sentence different from that described." . . . The decision as to whether and to what extent departure is warranted rests with the sentencing court on a case specific basis.
See U.S. Sentencing Guidelines Manual §5K2.0 (Policy Statement) (1999).
3. The case of United States v. Luna-Sanchez, Case No. 1088-2:99-CR-561-W, was also appealed to this court. See United States v. Luna-Sanchez, Case No. 00-4042. Our decision in Luna-Sanchez is also issued today and reaches the same conclusion as the case at bar.