BOARD OF EDUCATION OF the COUNTY OF KENT et al.
Wendell A. Miles, Grand Rapids, Mich., for appellants.
Paul O. Strawhecke, Grand Rapids, Mich., for appellees.
Appellants, qualified and registered electors of Kent County, Michigan, brought this suit in the Federal District Court to enjoin the Board of Education of Kent County from detaching certain schools from the city of Grand Rapids and attaching them to Kent County, to declare the county board to be unconstitutionally constituted, and to enjoin further elections until the electoral system is redesigned. Attack is also made on the adequacy of the statutory standards governing decisions of the county board in light of the requirements of due process. We need not bother with the intricate problems of state law involved in the dispute. For the federal posture of the case is a very limited one. The people of Michigan (qualified school electors) elect the local school boards.1 No constitutional question is presented as respects those election. The alleged constitutional questions arise when it comes to the county school board. It is chosen, not be the electors of the county, but by delegates from the local boards. Each board sends a delegate to a biennial meeting and those delegates elect a county board of five members, who need not be members of the local boards,2 from candidates nominated by school electors. It is argued that this system of choosing county board members parallels the countyunit system which we invalidated under the Equal Protection Clause of the Fourteenth Amendment in Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 and violates the principle of 'one man, one vote' which we held in that case and in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, was constitutionally required in state elections. A vast array of facts is assembled showing alleged inequities in a system which gives one vote to every local school board (irrespective of population, wealth, etc.) in the selection of the county board. A three-judge court was convened, and it held by a divided vote that the method of constitution of the county board did not violate the Fourteenth Amendment. 254 F.Supp. 17. We noted probable jurisdiction, 385 U.S. 966, 87 S.Ct. 499, 17 L.Ed.2d 431.
We conclude that a three-judge court was properly convened, for unlike the situation in Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643, this is a case where the state statute that is challenged3 applies generally to all Michigan county school boards of the type described.
'Political subdivisions of States—counties, cities or whatever—never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the caryi ng out of state governmental function. As stated by the Court in Hunter v. City of Pittsburgh, 207 U.S. 161, 178, (28 S.Ct. 40, 52 L.Ed. 151,) these governmental units are 'created as convenient agencies for exercising such of the governmental powers of the state, as may be entrusted to them,' and the 'number, nature and duration of the powers conferred upon (them) * * * and the territory over which they shall be exercised rests in the absolute discretion of the state."
We find no constitutional reason why state or local officers of the nonlegislative character involved here may not be chosen by the governor, by the legislature, or by some other appointive means rather than by an election. Our cases have, in the main, dealt with elections for United States Senator or Congressman (Gray v. Sanders, supra; Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481) or for state officers4 (Gray v. Sanders, supra) or for state legislators. Reynolds v. Sims, supra; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609; Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620; Lucas v. Forty-Fourth Gen. Assembly of State of Colo., 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632; Marshall v. Hare, 378 U.S. 561, 84 S.Ct. 1912, 12 L.Ed.2d 1036.
They were all cases where elections had been provided and cast no light on when a State must provide for the election of local officials.
If we assume arguendo that where a State provides for an election of a local official or agency, the requirements of Gray v. Sanders and Reynolds v. Sims must be met, we are still short of an answer to the present problem and that is whether Michigan may allow its county school boards to be appointed.
When we stated '* * * the state legislatures have constitutional authority to experiment with new techniques' (Day-Brite Lighting, Inc. v. State of Missouri, 342 U.S. 421, 423, 72 S.Ct. 405, 407, 96 L.Ed. 469), we were talking about the Due Process Clause of the Fourteenth Amendment, as was Mr. Justice Holmes, dissenting in Lochner v. State of New York, 198 U.S. 45, 75, 25 S.Ct. 539, 546, 49 L.Ed. 937, when he said '* * * a constitution is not intended to embody * * * the organic relation of the citizen to the state * * *.' But as we indicated in Gomillion v. Lightfoot, supra, it is precisely that same approach that we have taken when it comes to municipal and county arrangements within the framework of a State. Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs.
The Michigan system for selecting members of the county school board is basically appointive rather than elective.6 We need not decie at the present time whether a State may constitute a local legislative body through the appointive rather than the elective process. We reserve that question for other cases such as Moody v. Flowers (Board of Supervisors v. Bianchi), 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643, which we have disposed of on jurisdictional grounds. We do not have that question here, as the County Board of Education performs essentially administrative functions;7 and while they are important, they are not legislative in the classical sense.
Viable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions. We see nothing in the Constitution to prevent experimentation. At least as respects nonlegislative officers, a State can appoint local officials or elect them or combine the elective and appointive systems as was done here. If we assume arguendo that where a State provides for an election of a local official or agency—whether administrative, legislative, or judicial—the requirements of Gray v. Sanders and Reynolds v. Sims must be met, no question of that character is presented. For while there was an election here for the local school board, no constitutional complaint is raised respecting that election. Since the choice of members of the county school board did not involve an election and since none was required for these nonlegislative offices, the principle of 'one man, one vote' has no relevancy.
In Michigan the members of the local school district's board are elected by popular vote of the residents of the district. See Mich.Stat.Ann. § 15.3023 (1959) Comp.Laws 1948, § 340.23 (P.A.1955, No. 269); Mich.Stat.Ann. §§ 15.3027, 15.3055, 15.3056, 15.3107, 15.3148, 15.3188, 15.3511 (Supp.1965), Comp.Laws 1948, §§ 340.27, 340.55, 340.56, 340.107, 340.148, 340.188, 340.511 (P.A.1955, No. 269).
Mich.Stat.Ann. §§ 15.3294(1), 15.3295(1) (Supp.1965). Comp.Laws 1948, §§ 340.294a, 340.295a (P.A.1962, No. 190). By Mich.Stat.Ann. §§ 15.3294(2)—15.3294(6) (Supp.1965), Comp.Laws 1948, §§ 340.294b—340.294f (P.A.1962, No. 190), members of the county board may be chosen at popular elections provided the board submits the matter to a referendum and the people approve. So far as we are advised, no such referendum has been held; and the membership of the county board, here challenged, was constituted by electors chosen by the local boards.
The officers in Gray v. Sanders were: U.S. Senator, Governor, Lieutenant Governor, Justice of the Supreme Court, Judge of the Court of Appeals, Secretary of State, Attorney General, Comptroller General, Commissioner of Labor, and Treasurer.
Nor can the restraints imposed by the Constitution on the States be circumvented by local bodies to whom the State delegates authority. Standard Computing Scale Co. v. Farrell, 240 U.S. 571, 577, 39 S.Ct. 380, 382, 63 L.Ed. 780; Cooper v. Aaron, 358 U.S. 1, 17, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5.
The delegates from the local school boards, not the school electors, select the members of the county school board. While the school electors elect the members of the local school boards and the local school boards, in turn, select delegates to attend the meeting at which the county board is selected, the delegates need not cast their votes in accord with the expressed preferences of the school electors. There is not even a formal method by which a delegate can determine the preferences of the people in his district. It is evident, therefore, that the membership of the county board is not determined, directly or indirectly, through an election in which the residents of the county participate. The 'electorate' under the Michigan system is composed not of the people of the county, but the delegates from the local school boards.
The authority of the county board includes the appointment of a county school superintendent (Mich.Stat.Ann. § 15.3298(1)(b) (Supp.1965)), preparation of an annual budget and levy of taxes (Mich.Stat.Ann. § 15.3298(1)(c) (Supp.1965)), distribution of delinquent taxes (Mich.Stat.Ann. § 15.3298(1)(d) (Supp.1965)), furnishing consulting or supervisory services to a constituent school district upon request (Mich.Stat.Ann. § 15.3298(1)(g) (Supp.1965)), conducting cooperative educational programs on behalf of constituent school districts which request such services (Mich.Stat.Ann. § 15.3298(1)(i) (Supp.1965)), and with other intermediate school districts (Mich.Stat.Ann. § 15.3298(1)(j) (Supp.1965)), employment of teachers for special educational programs (Mich.Stat.Ann. § 15.3298(1)(h) (Supp.1965)), and establishing, at the direction of the Board of Supervisors, a school for children in the juvenile homes (Mich.Stat.Ann. § 15.3298(1)(k) (Supp.1965)) Comp.Laws 1948, § 340.298a (P.A.1962, No. 190). One of the board's most sensitive functions, and the one giving rise to this litigation, is the power to transfer areas from one school district to another. Mich.Stat.Ann. § 15.3461 (1959), Comp.Laws 1948, § 340.461 (P.A.1955, No. 269).


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Present: WILKINS, C.J., LYNCH, O'CONNOR, & GREANEY, JJ.
INDICTMENT found and returned in the Superior Court Department on July 1, 1987.
Motions to revise or revoke sentence and subsequently for reconsideration were heard by J. Harold Flannery, J.
A motion to enlarge the time in which to file a notice of appeal was heard in the Appeals Court by Charlotte A. Perretta, J.
Donald A. Harwood (Kevin J. Reddington with him) for the defendant.
O'CONNOR, J. On July 1, 1987, a Norfolk County grand jury indicted the defendant, Peter Barclay, for the murder of Mark Steven Kaufman. On February 22, 1988, the defendant pleaded guilty to so much of the offense as alleged manslaughter, and on March 30, 1988, the judge sentenced him to from fifteen to eighteen years to be served at the Massachusetts Correctional Institution at Cedar Junction.
"Revision or Revocation. The trial judge upon his own motion or the written motion of a defendant filed within sixty days after the imposition of a sentence . . . may upon such terms and conditions as he shall order, revise or revoke such sentence if it appears that justice may not have been done."
"I am well aware that the Court is not in a position to legally consider things that occur or happen to inmates while incarcerated but I feel that it is important for the Court to know when the criminal justice system is successful. I say this somewhat tongue in cheek because the end result is to request that Your Honor would consider the Motion to Revoke and Revise. I feel very strongly about this and feel that perhaps [the prosecutor] may even acquiesce in light of the fine individual that the defendant has shown himself to be."
sentence reduced to from twelve to fifteen years. The sentence revision, in combination with other credits the defendant earned while incarcerated, entitled him to be discharged on May 5, 1995.
On May 2, 1995, two months after the rule 29 revise and revoke motion was allowed, and more than seven years after sentence was imposed, the Commonwealth filed a motion for reconsideration of the decision to revise the defendant's sentence, suggesting that the judge may have relied on improper considerations in reducing the sentence. The judge denied the Commonwealth's motion. The Commonwealth then moved for leave to file late an appeal from the order on the defendant's rule 29 revise or revoke motion, and for a stay of the order. A single justice of the Appeals Court allowed the Commonwealth's motion notwithstanding her conclusion that the Commonwealth's failure timely to file a notice of appeal had been inexcusable. Relying on Tisei v. Building Inspector of Marlborough, 3 Mass. App. Ct. 377 , 379 (1975), she reasoned that the appeal concerned a question of law deserving judicial review and that denial of the motion would leave the Commonwealth without recourse on a matter of public importance.
"In the case of motions for leave to file an appeal late . . . a showing of a meritorious case is required.... Mass. R.A.P. 14 (b) was [not] intended to dispense with the judicially 'established practice not to grant applications for. . . [ . . . late claims of appeal] . . . unless it appears that the petitioning party has a case meritorious or substantial in the sense of presenting a question of law deserving judicial investigation and discussion.'" Tisei v. Building Inspector of Marlborough, 3 Mass. App. Ct. 377 , 379 (1975), quoting St. Nicholas Russian Benefit Soc'y, Inc. v. Yaselko, 279 Mass. 81 , 85 (1932). "A meritorious appeal is 'one that is worthy of presentation to a court, not one which is sure of success.'" Jones v. Manns, 33 Mass. App. Ct. 485 , 493 n.9 (1992), quoting General Motors Corp., petitioner, 344 Mass. 481 , 482 (1962).
superintendence power to correct a sentence that has been imposed contrary to law. Commonwealth v. Cowan, supra at 547, citing Commonwealth v. Gaulden, 383 Mass. 543 , 545, 550 (1981); Commonwealth v. McCarthy, 375 Mass. 409 , 415 n.6 (1978). Therefore, we shall address the Commonwealth's arguments despite the Commonwealth's failure to present them in the Superior Court.
Beginning with Commonwealth v. Sitko, 372 Mass. 305 , 312-314 (1976), we have repeatedly and unequivocally held that a judge may not take into account conduct of the defendant that occurs subsequent to the original sentencing. The purpose of rule 29 is to "permit a judge to reconsider the sentence he has imposed and determine, in light of the facts as they existed at the time of sentencing, whether the sentence was just." Commonwealth v. Layne, 386 Mass. 291 , 295 (1982). The record strongly suggests that in this case, at the invitation of both parties, the motion judge did take into account the defendant's postconviction conduct. That has not been established with certainty, however.
In any event, more than six years had elapsed between the sentencing of the defendant and the defendant's request for a hearing on the rule 29 revise and revoke motion. Seven years had elapsed between sentencing and the requested hearing. In Commonwealth v. Layne, supra at 295-296, we construed rule 29 as precluding a judge from considering a motion to revise or revoke that has been timely filed on the disposition of an appeal that had remained dormant for more than nine years. We concluded that rule 29 should not be read as allowing such a motion after a reasonable time for the prosecution of an appeal from a conviction has passed. We reasoned that because the purpose of the rule is to enable the judge to reconsider a sentence based on the facts existing at the time he imposed the sentence, a lengthy delay between sentencing and reconsideration impedes the judge's ability to "make the determination called for by the rule without improperly considering postsentencing events." Id. This reasoning also applies to the situation presented here. Accordingly, we hold that Mass. R. Crim. P. 29 required the judge to consider the motion to revise or revoke within a reasonable time after the motion was filed and that, in the present case, six years is an unreasonable time.
considerations in determining the reasonableness of a delay between the filing of a motion and a judge's consideration of that motion. See id. at 296. Although the defendant waited more than six years before requesting a hearing on his motion, the record does not indicate any reasons for this delay. Where there is an extended delay between the time the motion is filed and the time it is heard, there is an increased likelihood that the motion judge will be influenced by a defendant's postsentencing conduct. An extended delay also increases the likelihood that the presiding judge may no longer be serving in the same capacity, as was the case here, where the presiding judge is now serving in the Appeals Court.
As in Layne, supra at 296, our objective is not to define a particular time frame in which a motion to revise or revoke must be considered once it is filed. We simply hold that the period of time at issue here was unreasonable. Accordingly, we hold that the judge erred in allowing the revise and revoke motion.
We vacate the judge's order and remand this matter to the Superior Court where the original sentence is to be reinstated.

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For all Photo classes see Photography. For classes in Interior Architectural Design, see Interior Architectural Design.
This is an introductory course in the theory and application of the elements of 2-D design. Assignments will focus on the following design principles: line, value, form, scale, light, logic, space, depth, texture, pattern, composition and color theory. This course is required for all art majors.
Transfer: UC, CSU • Advisory: Art 10A.
This course is a continuation of the study of the fundamentals of design with special emphasis on thought and design concepts with portfolio oriented projects and an introduction to 3-D design. Required for art majors.
This course is a continuation of the theory and application of the principles and elements of fine art and design on the computer. Introducing the basics of computer operation for digital imaging applications, scanner technologies, and learning how to apply visual design concepts with digital media. This course serves as preparation for further study in the computer arts by providing an overview of theoretical issues related to the use of computers in fine art disciplines. Studio projects focus on integrating visual design principles with digital imaging technology and personal expression.
Transfer: CSU • Advisory: Art 10A and 20A.
This course explores jewelry design and silversmithing as an art form and includes both fabricating and lost-wax casting techniques.
This fundamental course is focused on representational drawing and composition using various black and white media. Emphasis is placed on development of perceptual skill, comprehension of formal theory, and performance competency in the media introduced.
Transfer: UC, CSU • Advisory: Art 20A.
This course is a continuation of Art 20A with emphasis on the compositional aspects of drawing and the development of individual expression. There is an introduction to color and color theory and to the human figure. The figure is studied relative to its unique qualities of proportion, gesture, and expression.
Transfer: UC, CSU • Advisory: Art 10C.
This course is designed for students who are interested in broadening their range of drawing options by integrating traditional fine art drawing skills with digital technologies. Focus will be on exploration of the principles of drawing in their simplest form: marks, lines, shapes, light, perspective, proportion and spatial relationships. Using a combination of vector based and digital imaging software applications combined with traditional hands-on techniques, students will create drawing projects on the computer, as well as maintain a notebook of hands-on sketches. This course is a continuation of the compositional theories and skills developed in fundamental drawing classes, with an emphasis on preparing students to build upon their digital skills and fine art concepts and to develop personal directions in drawing.
Transfer: UC, CSU • Advisory: Art 20B.
This is a drawing course with major emphasis on drawing from a live model in a variety of both black and white and color media. This course emphasizes anatomical and skeletal structures.
Transfer: UC, CSU • Advisory: Art 21A.
This course is a continuation of Art 21A including composition and interpretation of drawing the figure in various media.
Transfer: UC, CSU • Advisory: Art 10A or 20A.
This is an introductory course to water media painting with emphasis on watercolor technique, composition, and formal theory. A spectrum of wash, glaze, and gouache techniques are explored using principles of color theory, composition, and space building concepts.
Transfer: UC, CSU • Advisory: Art 10A and 20A.
This course will focus on the basics of drawing and painting with Acrylics and Mixed Media. Acrylics are a fast drying medium that is ideally suited for the beginning art student interested in Commercial Arts as well as Fine Arts. Students will develop skills in conceptual and observational painting through still life and assignments geared toward illustration. Assignments are based on typical areas of concentration found in the field, including conceptual, decorative, surreal, editorial, design, narrative, portrait, realistic and on the practical aspect of a career in illustration.
This an introductory course in oil painting. This course will emphasize building a foundation for executing and understanding paintings with coursework focusing on the use and application of painting materials, composition, and theory.
Above section 1161 meets at the Airport Arts Campus, 2800 Airport Avenue, Santa Monica Airport.
This course is an intermediate course in painting with a variety of types of subject matter. This course will emphasize the further use of oil paint or acrylic.
Above section 4029 meets at the Airport Arts Campus, 2800 Airport Avenue, Santa Monica Airport.
Transfer: UC, CSU • Advisory: Art 32 and 21A.
This course will focus on painting from the live model. The ability to use the figure as a carrier of concepts and emotional content will be addressed, as well as light and its application to the human form. This course will continue to develop the understanding of the use and application of painting materials, composition, and theory.
This is an introductory studio course for beginners and those who would like to discover their own style, materials, and methods for making authentic artworks. Use of traditional and non-traditional contemporary art practices and media will be presented to encourage students to find their own visual language and approach. The nature and methods of various contemporary art movements and genres will be examined.
Above section 1165 meets at the Airport Arts Campus, 2800 Airport Avenue, Santa Monica Airport.
Above section 4031 meets at the Airport Arts Campus, 2800 Airport Avenue, Santa Monica Airport.
Transfer: UC, CSU • Prerequisite: Art 34A.
This course is structured to further encourage each student in the development of a personal visual language for the creation of content-oriented art works leading to a portfolio for transfer purposes. Both traditional and non-traditional art genres will be explored including installation, video, and performance. Emphasis will be placed on combining formal studio skills with an idea or concept to produce crafted and unified artworks.
Above section 4032 meets at the Airport Arts Campus, 2800 Airport Avenue, Santa Monica Airport.
Formal and spatial problems in sculpture are covered in this course which emphasizes modeling with clay and stone carving. *See counselor regarding transfer credit limitations.
Transfer: UC, CSU • Advisory: Art 40A.
This is a continuation of Art 40A with further exploration of sculptural materials and techniques. Emphasis is on individual growth and direction.
Transfer: UC, CSU • Advisory: Art 40B.
This course offers the advanced sculpture student the opportunity to further explore stone carving using pneumatic tools. Emphasis is on individual interpretation.
Transfer: UC, CSU • Advisory: Art 21A or 40A.
Sculpting the human figure in clay is studied. Emphasis is on relief and full figure over an armature, using live models.
Above section 1170 meets at the Airport Arts Campus, 2800 Airport Avenue, Santa Monica Airport.
This is a ceramic design and construction course using basic hand building methods and wheel throwing. Emphasis is on surface decoration and glazing.
Above section 1171 meets at the Airport Arts Campus, 2800 Airport Avenue, Santa Monica Airport.
Above section 1172 meets at the Airport Arts Campus, 2800 Airport Avenue, Santa Monica Airport.
Above section 1173 meets at the Airport Arts Campus, 2800 Airport Avenue, Santa Monica Airport.
Transfer: UC, CSU • Advisory: Art 52A.
This course is a continuation of Art 52A. Emphasis is on wheel throwing, glaze chemistry, stacking, and firing.
Above section 1174 meets at the Airport Arts Campus, 2800 Airport Avenue, Santa Monica Airport.
Transfer: UC, CSU • Advisory: Art 52B.
This course emphasizes advanced concepts in wheel throwing and creating sculptural forms in a variety of methods. Students will gain increased knowledge of glaze and firing technology.
Above section 1175 meets at the Airport Arts Campus, 2800 Airport Avenue, Santa Monica Airport.
This is an introductory course in printmaking media and techniques including lino-cut, multi-block woodcut, and etching processes.
The internship is designed to provide the student with on-site, practical experience in the field of Art. Students will gain work experience at an approved, supervised site.

matches:
Art 10
in fine
Art 10
Art 20
Art 20
Art 10
Art 20
Art 21
Art 21
Art 10
Art 10
Art 32
Art 34
Art 40
Art 40
Art 40
Art 21
Art 52
Art 52
Art 52


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On February 8, in the Société québécoise de gestion collective des droits de reproduction (Copibec) v. Université Laval case(hereafter “Copibec v. Université Laval”), Québec’s Court of Appeal authorized the Société québécoise de gestion collective des droits de reproduction (“Copibec”) to undertake a class action lawsuit against Université Laval for violating copyright and moral rights. Copibec claims atotal amount of$4,081,830,subject to re-evaluation.
This case is a rare instance in existing case law. It involves an application for leave to file a class action lawsuit, founded on allegations of copyright violation and, more particularly, on violation of the authors’ moral rights. As outlined below, the case-by-case application of several key copyright violation concepts had been interpreted at trial to be not easily reconcilable with the common nature that at least one of the questions asked must have in the context of a class action lawsuit. This judgment therefore seems to confirm that there is some possibility for copyright holders to use this type of solution, at least at the authorization stage.
This case falls in line with a series of decisions made by the Supreme Court of Canada in 2012, which we now refer to by the name of the copyright “Pentalogy”. The Pentalogy shed light on the concept of fair use of a work by others. The exception found in sections 29-29.2 of the Copyright Act confirms that these sections must not be interpreted restrictively, and that these exceptions indeed constitute user rights, as opposed to a simple method of technical defense when faced with accusations of copyright violation. In November 2012, Parliament also made important changes to the Copyright Act. These changes relate to this concept of fair use of a work, or of any other object protected under copyright.
Context: Copibec is a nonprofit, private law, legal entity acting as a copyright licensing body in accordance with the Copyright Act. Of particular note in this case is that Copibec itself is not a copyright owner; rather, it acts as a representative of copyright owners and publishers who license certain rights that are Copibec’s mission to manage. Copibec gives third parties, such as universities, for example, usage sub-licenses to these rights on a global basis, particularly for reproduction purposes, all for compensation. Importantly Copibec is not involved in managing the moral rights associated with works because these are non-transferable.
For many years, Université Laval had operated under a global usage license with Copibec, but after the events of 2012 mentioned above, more precisely as of March 10, 2014, it chose not to renew its license with Copibec, instead issuing a policy in favor of its students and its faculty for the purpose of favoring fair use of course material taken from works protected by copyright law, and adopting a rule to facilitate access to protected works that foresee, among other things, the establishment of a copyright bureau.
It is in this context that Copibac requested an authorization to file a class action lawsuit against Université Laval on behalf of copyright holders. This request was at first rejected by the Supreme Court at the trial level for the following reasons, among others: (i) even if the questions raised by Copibec were answered in the affirmative, the parties would not have significantly advanced the litigation; (ii) the equitable nature of the use conducted by Université Laval cannot be subject to collective analysis (criteria in paragraph (1) of section 575 of the Code of Civil Procedure of Québec); and (iii) Copibec does not have the motivation required to undertake this class action lawsuit.
The Court of Appeals ruled unanimously in a judgment written by Judge Guy Gagnon allowing the appeal in part. In summary, the Court concluded that the trial judge had demanded too high of a burden of proof given the guidelines provided by case law.
Judge Gagnon noted that the standard for establishing the existence of a common issue in a class action is not very high, and that the presence of “only one issue, that is the identical, similar or related, is sufficient to give authorization; provided that the issue’s importance is likely to significantly influence the fate of the class action”. In fact, according to the Court, it was incorrect for the trial judge i to consider the exception of fair use that Université Laval promoted in its evaluation of the common issues raised.
With respect to the complaints relating to moral rights, the Court concluded that this class action did not preclude non-proprietary complaints, and that since the main issue regarding copyright violation was accepted by the Court, this was sufficient to accept the related issue of moral rights at the authorization stage.
Regarding Copibec’s legal motivation to act, the Court of Appeal concluded that even if Copibec is not a copyright owner, according to the Copyright Act, its licensing body status and its role as an administrator of a license-granting system ensures that it has enough motivation to represent these group members and their property rights. As far as moral rights are concerned, the status of the authors, publishers, and other class action representatives appointed by Copibec is sufficient since all of them allege having had their moral rights violated. Therefore, it was not necessary to settle this issue, because, according to the Court, was theoretical in this particular case.
For these reasons, the Court of Appeal allowed the appeal on this point and authorized Copibec to pursue its class action lawsuit against l’Université Laval.
Authorization: When it comes to class action lawsuits, the decision of Copibec v. Université Laval is fully in line with the Court of Appeal’s current tendency (see notably the decision in Sibiga) with respect to the threshold that needs to be reached in order to authorize a party to undertake a class action lawsuit. In our opinion, what needs to be understood is that the threshold for authorization of a class action lawsuit, according to sections 574 and following of the Code of Civil Procedure of Québec, is very low, and unless the lawsuit is frivolous, it will be authorized to proceed.
(i) reproducing Works authored or owned by Class Members?
(iii) making Works authored or owned by Class Members available to the public by way of telecommunication?
(iv) selling or renting copies of the Works authored or owned by Class Members?
(vi) authorizing its subscribers to infringe Class Members’ copyright?
(vii) holding itself out as the owner or author of the Works?
(viii) infringing the moral rights of the authors of the copyrighted documents?
(b) If so, which rights have been infringed.
I agree with Thomson that infringement cannot be a common issue across the class because that would ignore that copyright and moral rights are ultimately individual issues of entitlement and that consent to copying may be an individual issue. In particular, the infringement of moral rights is an individual issue depending upon whether a particular author’s honour or reputation has been prejudiced by the use of particular court documents.
« Did Thomson through its Litigator service reproduce, publish, telecommunicate to the public, sell, rent, translate, or hold itself out as the author or owner of court documents?
These were common issues according to the judge, because they sought to establish Thomson Reuters’ management in fact (i.e., the actions taken), and not the issue of determining whether Thomson Reuters’ acts had infringed on the group members’ copyright.
protected literary, dramatic and artistic works without permission from their copyright owners or their representatives?
In light of the foregoing, we conclude that the issues raised by Copibec and accepted by the Court of Appeals are suitable for a class action and are closer, in our opinion, to the initial questions rejected by Justice Perell in Waldman than to the accepted questions in that same case.
Fair Use of a Work: With respect to the fair use exception set out in sections 29-29.2 of the Copyright Act, both decisions reiterated that this concept is not simply a defense, but also a user right. The question of copyright violation by the Université Laval and the concept of fair use are, in our opinion, intrinsically linked. Although we understand the arguments made by the Court of Appeals with respect to Copibec’s burden of proof at the authorization stage, these arguments are, in our opinion,a shortcut. They somewhat do not take into consideration the practical reality of the lawsuit, and the balance that the Copyright Act must create between copyright owners and society. Concluding that a party has exercised fair use of a work does not discharge responsibility for copyright violation; it means there simply never was a violation. The Court of Appeals, having affirmed that the question of fair use can be analyzed collectively for almost all of the acts for which Université Laval stands accused through proof of its general practices, it will be very interesting to follow the evolution of this lawsuit and to note the results.
Moral Rights: Regarding moral rights attached to works, although these are not transferable according to article 14.2(2) Copyright Act, the Court felt that this did not prevent an author from entrusting a third party to obtain, on their behalf, fair compensation for infringement of these rights. The question is here theoretical, but one may question Copibec’s legal motivation to act for the members of the group relative to their moral rights since these rights cannot be transferred. Copibec finds itself, therefore, walking in the shoes of a representative of moral rights owners in order to provide representation in front of the courts.
In summary, the Court of Appeals’ decision in Copibec v. Université Laval is only a preliminary step in the class action lawsuit to follow, but still invites institutions that rely on fair use of protected works made by others to exercise caution.
 But this is not the only one, refer particularly to Waldman v. Thomson Reuteurs Corporation, 2012 ONSC 1138, Association des journalistes indépendants du Québec (AJIQ-CSN) v. Journal Voir, 2010 QCCS 1574.
 Société québécoise de gestion collective des droits de reproduction (Copibec) v. Université Laval, 2016 QCCS 900, par. 38.
 Société québécoise de gestion collective des droits de reproduction (Copibec) v. Université Laval, 2017 QCCA 199, par. 22.
 Société québécoise de gestion collective des droits de reproduction (Copibec) v. Université Laval, 2016 QCCS 900, par. 5.
 Société québécoise de gestion collective des droits de reproduction (Copibec) v. Université Laval, 2017 QCCA 199, par. 42.
 Société québécoise de gestion collective des droits de reproduction (Copibec) v. Université Laval, 2017 QCCA 199, paras. 99-100.
 Société québécoise de gestion collective des droits de reproduction (Copibec) v. Université Laval, 2017 QCCA 199, par. 102-119.
 Sibiga v. Fido Solutions inc., 2016 QCCA 1299.
 Waldman v. Thomson Reuters Corporation, 2012 ONSC 1138.
 Société québécoise de gestion collective des droits de reproduction (Copibec) v. Université Laval, 2017 QCCA 199, par. 61.
 Waldman v. Thomson Reuters Corporation, 2012 ONSC 1138, par. 172.
 Waldman v. Thomson Reuters Corporation, 2012 ONSC 1138, par. 173.
 Waldman v. Thomson Reuters Corporation, 2012 ONSC 1138, par. 176.
 Waldman v. Thomson Reuters Corporation, 2012 ONSC 1138, par. 174.
 Société québécoise de gestion collective des droits de reproduction (Copibec) v. Université Laval, 2016 QCCS 900, para. 95; Société québécoise de gestion collective des droits de reproduction (Copibec) v. Université Laval, 2017 QCCA 199, paras. 66-74.
 Société québécoise de gestion collective des droits de reproduction (Copibec) v. Université Laval, 2017 QCCA 199, paras. 89-95.
 Société québécoise de gestion collective des droits de reproduction (Copibec) v. Université Laval, 2016 QCCS 900 par. 95; Société québécoise de gestion collective des droits de reproduction (Copibec) v. Université Laval, 2017 QCCA, par 111.

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Ralph Kennamer, Mobile, Ala. (Court appointed), for Beasley.
Vernon Z. Crawford, Mobile, Ala., Jonathan Shapiro, Boston, Mass., for Finley.
C.S. White-Spunner, U.S. Atty., Irwin W. Coleman, Jr., Asst. U.S. Atty., Mobile, Ala., for plaintiff-appellee.
Before GOLDBERG and RONEY, Circuit Judges, and GROOMS, District Judge.
Appellants, Finley and Beasley, were indicted with Walter C. Clewis and Maynard H. Williams for conspiring to interfere with interstate commerce by extortion in violation of the Hobbs Act, 18 U.S.C. Sec. 1951.1 The jury found appellants guilty but acquitted Clewis and Williams. The indictment alleges that between April 15, 1970, and February 15, 1973, that each of the appellants conspired with the co-defendants to extort monies from the promoters, agents, employees, or artists of eight named shows. Defendants were alleged to have attempted to obtain the payment of such monies for "imposed, unwanted, [and] superfluous services" of a corporation known as Soul Productions, Inc., by the use of "actual and threatened force and fear of economic loss by means of boycotting, picketing of said shows and obstruction of radio advertising and ticket sales outlets and destruction of advertising placards."
Appellants assign an array of errors, including the (1) sufficiency of the indictment, (2) sufficiency of the evidence, (3) action of the court in permitting the government to question the defendant Clewis on cross-examination about statements he had allegedly made prior to the trial and after the conclusion of the alleged conspiracy to agents of the Internal Revenue Service, and in permitting the agents to testify about such statements in rebuttal, (4) refusal of the court to grant a severance to Appellant Finley, (5) admission of prejudicial evidence, and (6) giving of erroneous and prejudicial instructions to the jury.
We will consider first, alleged errors (3) and (5) as noted.
In a lengthy in chambers conference there was a line-by-line consideration of five memoranda of interviews by the agent with Clewis and objections to the court's permitting the cross-examination of Clewis respecting the same. The court ruled that they could be used for cross-examination purposes and, reserving to the defendants a continuing objection, overruled the objections stating that "it will be a question for the jury whether or not they will believe the inferences and statements that are made." There was no motion to limit the evidence to the impeachment of Clewis and no limitation was placed on its use prior to or at the time of its admission.
It did not specifically address itself to the statements here involved. Appellants concede that the charge stated the law, but contend that the instruction was too little and came too late.
The court, nevertheless, affirmed as harmless error, since it could find only one instance of such a declaration and there was overwhelming evidence of the defendants' guilt.
"Lutwak established a minimum obligation on the trial judge in a conspiracy case in which extrajudicial statements of alleged co-conspirators are proffered to give a cautionary instruction on the limited uses of hearsay testimony, explaining clearly to the jury the requirement that the conspiracy itself and each defendant's participation in it must be established by independent non-hearsay evidence which must be given either prior to the introduction of any evidence or immediately upon the first instance of such hearsay testimony. See Menendez v. United States, 393 F.2d 312 (5th Cir.1968), cert. denied, 393 U.S. 1029, 89 S.Ct. 639, 21 L.Ed.2d 572 (1969).
"The Government calls our attention to the charge given by the court at the conclusion of the trial. While it does contain an accurate statement of the role of hearsay evidence in conspiracy cases, it came too late. This delicately dangerous defusing must be firmly in the jury's minds when the hearsay is proffered. An instruction at the end of the trial cannot correct the erroneous refusal to give the proper cautionary instruction when it was first requested."
In Apollo there was a request for limiting instructions.
"It was received without limitations on the purpose for which it could be considered and without objection. It was an extremely damaging statement. While appellant's counsel did not request an instruction that the statement is considered only as impeaching the witness, the need for such a charge to the jury was so obvious and the failure to give it so prejudicial to the appellant that this Court must notice the failure of as '[p]lain errors * * affecting substantial rights' of the accused under Rule 52(b) F.R.Crim.Proc."
"We are of the opinion that the failure of the trial judge to limit through cautionary instructions the jury's consideration of these extra-judicial statements to impeachment purposes requires reversal. Although such an instruction was not specifically requested, it has generally been held that failure to give it amounts to plain error where, as here, the government's case is weak and the statement is extremely damaging. Jones v. United States, 128 u.S.App.D.C. 36, 385 F.2d 296 (1967); Newman v. United States, 331 F.2d 968 (8th Cir.1964); Upham v. United States, 328 F.2d 661 (5th Cir.1964)."
Although there was enough nonhearsay evidence in this record to support a conviction, such evidence was not overwhelming, as in Lutwak, nor so narrowly restricted in the number of statements.
The court erred in failing to limit the effect of the hearsay evidence to the impeachment of Clewis in conformity with the rules prescribed in Lutwak and Apollo.
On February 7, 1973, defendant Clewis, who was the manager of the Mobile Auditorium wrote Don Fox of Beaver Productions in New Orleans and enclosed copies of a contract covering the Curtis Mayfield concert. Fox replied on the 9th and stated that after talking to Mr. Lambert on the phone they had decided to cancel the concert, giving as a reason therefor that there was a group of black people in Mobile who were asking 10-15% to promote the Curtis Mayfield show, and that if they did not cooperate those people would picket the show. Also, after talking with Ricky Williams he (Williams) had informed them that the black preachers would boycott the show because it was on Sunday night. During the testimony of witness Lambert, Assistant Manager of the Auditorium, the letter of the 9th of February was offered and received in evidence without limitation and over objections timely made. It was not a business record within the purview of 28 U.S.C. Sec. 1732, was damaging hearsay as to appellants, and was erroneously admitted as to them. Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645; Hussein v. Isthmian Lines, Inc., 5 Cir., 405 F.2d 946; United States v. Shiver, 5 Cir., 414 F.2d 461; United States v. Sherfey, 6 Cir., 384 F.2d 786.
During his cross-examination Clewis offered in evidence and the court admitted the complete record of the minutes of the meetings of the Auditorium Board of Directors. The minutes contain Clewis' reports to the Board and contain extremely damaging hearsay statements as to Beasley and incidentally as to Finley because of his association with Beasley. In the minutes of March 5, 1969, it is stated that: "James Brown (of the James Brown Show) told Mr. Clewis by phone that he would rather not be a part of what seemed to be the threat of a major riot, as Beasley and his group were extreme militants." From the minutes of February 17, 1971, we quote: "When I returned from the International Promoters Association meeting in New York, it was rumored that blacks were blackmailing promoters of black shows and asking a percentage to be paid to black promoters or they would boycott the building.--I was told if they did not have a black promoter here for this show there would be a boycott so I informed the promoters what I had been told--Mr. Kinsaul said he was told by Dickey Diamond if they did not hire a black promoter, they would be boycotted."
The fact that the statements of Clewis were included in his reports to the Board did not make them admissible for the truth of what was stated. Their mere recordation imported no guaranty of their truth.
"The act was not designed, however, to facilitate the introduction of hearsay as to which the reporter, if he appeared in person, would not be allowed to testify. The police officer who made the report would not have been permitted to tell what the owner of the car told him, for the purpose of establishing the truth of the owner's statement. Similarly, if the testimony is reduced to record form it continues to be inadmissible."
The court erred in admitting the minutes. United States v. Shiver, supra; United States v. Graham, 6 Cir., 391 F.2d 439. See also, Yates v. Bair Transport, Inc. (S.D.N.Y.) 249 F.Supp. 681, where there is an extensive review of the authorities.
"We hold today that the use of the Estes' [Estes v. United States, 335 F.2d 609 (5th Cir.1964), cert. denied 380 U.S. 926, 85 S.Ct. 884, 13 L.Ed.2d 814] 'rebuttable presumption' language and Mann's 'So unless the contrary appears' language, should be discontinued; and where the nature of the case and the remaining portions of the charge do not alleviate the problem created, convictions based upon verdicts returned by juries so instructed will not be allowed to stand."
Finley's written motion for a severance was based upon his joinder with Beasley. His brief deals with his joinder with Clewis. Clewis will not be a defendant upon a retrial. But in view of a possible reassignment of the motion as to a joinder with Beasley, we deem it well to observe that severance is a matter committed to the sound discretion of the trial judge. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101; Tillman v. United States, 5 Cir., 406 F.2d 930, 934-935, cert. den. 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742. We find no abuse of the court's discretion in denying the motion.
The other alleged errors referred to herein, and others referred to in the briefs, are without merit.
The case is reversed for a new trial as to both appellants.
"A He [Clewis] stated that Finley and Beasley had approached him and wanted five percent commissions on all black shows in the Municipal Auditorium.
"A He said he told them that Soul Productions existed being Mr. Finley and Mr. Beasley and Mr. Williams, and these people wanted five percent, and if they were not paid the show would be boycotted by the black people, no advertising would be conducted in any of the black businesses and that any posters put up by other than this organization would be torn down."
"Q All right sir. Now, at that time, on February 22nd, did you tell Agent Coats there that Mr. Beasley informed you that he wanted to get in the production business?
Q Yes sir, he did.
Well, did they tell you that they wanted five percent of the gross take on every black show?
A That they promoted or worked with. Yes sir. But that's normal throughout the country."
"Q I am asking did you tell the agents that Mr. Finley told you that he would guarantee that no posters or billboards would be torn down and no blacks would boycott or demonstrate at the auditorium.
A Where they put the placcards and things. Yes sir.
A Where they put their placcards and all, yes sir, they would not be torn down where they put their placcards.
Q Where they put their placcards?
Q What about a boycott and demonstration, did they say there would be no demonstrations?
A They never told me nothin about demonstrations. Since I think of October '70 I never heard that word."
"A Finley further stated that they could guarantee no posters or billboards would be torn down and no blacks would demonstrate or boycott the auditorium.
Q Now, the last paragraph on that first page, do you see that, sir?
Q Did Mr. Clewis tell you that?
"Q Did you further tell those agents that on that same day in that same interview that Mr. Finley told you or stated that they could guarantee no posters or billboards would be torn down and that no blacks would demonstrate or boycott the auditorium?
"A Clewis stated that it was along about this time that Beasley informed him that he wanted to get in the promotion business. Shortly after this in 1969 James H. 'Doc' Finley phoned him and told him that he and Beasley had their own productions company, Soul Productions, Incorporated, and that they wanted at least five percent of the gross take on every black show that came to Mobile, Alabama."
"As a general rule it is reasonable to infer that a person ordinarily intends all of the natural and probable consequences of acts knowingly done and knowingly omitted. So, unless the evidence in this case leads you to a different or contrary conclusion, you may draw the inference and find that the accused intended all of the natural and probable consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to have resulted from any acts knowingly done or knowingly omitted by him."

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D.C. Law Library - § 47–864. Owner-occupant residential tax credit.
↪ § 47–864. Owner-occupant residential tax credit.
§ 47–863. Reduced tax liability for property owners over age 65 and for property owners with disabilities; rules.
§ 47–864. Owner-occupant residential tax credit.
(a) Real property receiving the homestead deduction under § 47-850 or § 47-850.01 shall receive an owner-occupant residential tax credit.
(ii) Subtract from that amount the difference of the current tax year’s homestead deduction less the prior tax year’s homestead deduction to determine the current tax year’s taxable assessment.
(2) Subtract the current tax year’s homestead deduction from the current tax year’s assessed value.
(4) If the amount determined under paragraph (3) of this subsection is a positive number, multiply the amount by the applicable real property tax rate to determine the credit for the current tax year.
(ii) Not filed timely for the entire tax year.
(d) Notwithstanding any other provision of this section, if the entire interest in the real property is transferred to a new owner and the real property no longer qualifies as a homestead pursuant to § 47-850 or § 47-851[§ 47-850.01], the real property shall be entitled to the credit applicable to the installment payable during the half tax year during which the ownership interest was transferred. At the end of the half tax year, the credit shall cease.
(e) Notwithstanding any other provision of this chapter, if the current tax year’s taxable assessment of a real property receiving the homestead deduction under § 47-850 or § 47-850.01 is less than 40% of the current tax year’s assessed value, the current tax year’s taxable assessment for purposes of subsection (b)(1) of this section shall be 40% of the current tax year’s assessed value.
(3) Not be carried forward or carried back.
This section is referenced in § 47-824, § 47-863, and § 47-3503.
D.C. Law 15-135, in subsec. (a)(2), deleted “, and subsequent years,” following “2003,”; in subsecs. (b) and (c), substituted “credit under subsection (a) of this section” for “credit”; and added subsec. (d).
D.C. Law 15-205, in subsecs. (a)(2), (b), and (c), purported to make changes already made by Law 15-135; and rewrote subsec. (d).
D.C. Law 16-33, in subsec. (d)(3)(A)(i), substituted “new owner and the return required by § 42-1103(d) and § 47-903(d) was due” for “new owner”; rewrote subsec. (d)(2); and added subsecs. (d)(3)(C) and (d)(4).
D.C. Law 16-191 rewrote the section.
D.C. Law 17-219 repealed subsec. (d).
For temporary (90 days) amendment of this section, see § 7002 of Fiscal Year 2019 Budget Support Congressional Review Emergency Act of 2018 (D.C. Act 22-458, Oct. 3, 2018, 65 DCR 11212).
For temporary (90 days) amendment of this section, see § 7002 of Fiscal Year 2019 Budget Support Emergency Act of 2018 (D.C. Act 22-434, July 30, 2018, 65 DCR 8200).
For temporary (90 day) amendment of section, see §§ 2, 3 of Owner-occupant Residential Tax Credit Emergency Act of 2002 (D.C. Act 14-306, March 25, 2002, 49 DCR 3407).
For temporary (90 day) amendment of section, see § 822 of Fiscal Year 2003 Budget Support Emergency Act of 2002 (D.C. Act 14-453, July 23, 2002, 49 DCR 8026).
For temporary (90 day) amendment of section, see § 2(e) of Owner-Occupant Residential Tax Credit and Homestead Deduction Clarification Emergency Act of 2004 (D.C. Act 15-374, February 24, 2004, 51 DCR 2618).
For temporary (90 day) amendment of section, see § 1162(f) of Fiscal Year 2005 Budget Support Emergency Act of 2004 (D.C. Act 15-486, August 2, 2004, 51 DCR 8236).
For temporary (90 day) amendment of section, see § 1162(f) of Fiscal Year 2005 Budget Support Congressional Review Emergency Act of 2004 (D.C. Act 15-594, October 26, 2004, 51 DCR 11725).
For temporary (90 day) amendment of section, see §§ 1082(d), 1083, 1262(c), 1263, 1264, 1286 to 1288 of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).
For temporary (90 day) amendment of section, see §§ 3(c), 23, 24 of Finance and Revenue Technical Amendments Second Emergency Amendment Act of 2006 (D.C. Act 16-585, December 28, 2006, 54 DCR 340).
For temporary (90 day) amendment of section, see §§ 7021(b), 7022 of Fiscal Year 2010 Budget Support Emergency Act of 2009 (D.C. Act 18-187, August 26, 2009, 56 DCR 7374).
For temporary (90 day) amendment of section, see § 7071(b) of Fiscal Year 2010 Budget Support Second Emergency Act of 2009 (D.C. Act 18-207, October 15, 2009, 56 DCR 8234).
For temporary (90 day) amendment of section, see § 7071(b) of Fiscal Year Budget Support Congressional Review Emergency Amendment Act of 2009 (D.C. Act 18-260, January 4, 2010, 57 DCR 345).
For temporary (225 day) amendment of section, see § 2 of Owner-Occupant Residential Tax Credit Temporary Act of 2002 (D.C. Law 14-160, June 25, 2002, law notification 51 DCR 6496).
For temporary (225 day) amendment of section, see § 2(e) of Owner-Occupant Residential Tax Credit and Homestead Deductions Temporary Act of 2004 (D.C. Law 15-159, May 18, 2004, law notification 51 DCR 5699).
Short title of subtitle B of title VIII of Law 14-190: Section 821 of D.C. Law 14-190 provided that subtitle B of title VIII of the act may be cited as the Owner-Occupant Residential Tax Credit of 2002.
Short title of subtitle II of title I of Law 16-33: Section 1285 of D.C. Law 16-33 provided that subtitle II of title I of the act may be cited as the Triennial Group Taxable Assessment Disparity Correction Act of 2005.
Short title: Section 7070 of D.C. Law 18-111 provided that subtitle E of title VII of the act may be cited as the “Owner-Occupant Residential Tax Credit Act of 2009”.
Section 3 of Law 15-135 provided that § 2(a), (b), and (c)(3) of the act shall apply as of October 1, 2003.
Section 1083 of D.C. Law 16-33 provided that § 1082(a)(1), (b), (d)(1), and (d)(2)(B) shall apply for taxable years beginning after September 30, 2005.
“(a) Section 1286 shall apply for taxable years beginning after September 30, 2005.


text:
A abelha Bombus terrestris é um excelente polinizador, prestando importantes serviços ecossistêmicos na Europa e adjacências, onde a espécie é nativa. Contudo, foi criada em larga escala para uso em polinização em ambientes protegidos por empresas especializadas, é vendida para vários países do mundo. São crescentes os relatos de invasão da espécie em áreas fora de sua distribuição natural, onde tem competido com outras abelhas na busca por recursos florais. Bombus terrestris foi introduzida no Chile para polinização agrícola, mas já pode ser encontrada vivendo livre na natureza na Argentina. Porém, o conhecimento sobre as interações locais com plantas e com as outras espécies de abelhas do gênero Bombus nesse novo ambiente ainda é escasso. Por meio de modelos bioclimáticos e análises biogeográficas, foi possível estimar as prováveis rotas por onde a espécie poderá deslocar-se na America do Sul. Uma ênfase foi dada ao território brasileiro.
The bumblebee Bombus terrestris is an excellent pollinator, providing important ecosystem services in Europe and surroundings, where this species is native. However, it is reared in large quantities for use in greenhouse pollination by specialized companies that sold colonies to many countries around the world. There are reports of invasion of this species into areas outside its natural range, in which this bee has become a competitor with other local bees in search of floral resources. Bombus terrestris was introduced in Chile for agricultural pollination, but it can be found freely in nature in Argentina. Nevertheless, the knowledge about the interactions with plants and with other local bee species of the genus Bombus in this new environment is still scarce. Through bioclimatic models and biogeographic analysis, it was possible to estimate the likely routes by which this bee species can move in South America. An emphasis was given to Brazilian territory.
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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. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


96 Lloyd v. Scott, 4 Pet. 205, 7 L. Ed. 833. See "Usury," Dec. Dig. (Key-No.) § 12; Cent. Dig. §§ 23, 2k, 146.
97Cottrell v. Southwick, 71 Iowa, 50, 32 N. W. 22; Exley v. Berryhill, 37 Minn. 182, 33 N. W. 567; McDonald v. Aufdengarten, 41 Neb. 40, 59 N. W. 762; Levey v. Allien, 72 Hun, 321, 25 N. Y. Supp. 352. If, however, a usurious contract is mutually abandoned by the parties, and the securities canceled or destroyed, so that they may not become the foundation of an action, and the borrower then makes a contract to pay the amount actually received by him, this last contract will not be tainted with the original usury. Sheldon v. Haxtun, 91 N. Y. 125; Levey v. Allien, supra; Porter v. Jefferies, 40 S. C. 92, 18 S. E. 229. See "Usury," Dec. Dig. (Key-No.) §§ 66, 67; Cent. Dig. §§ 189-141.
98 Armstrong v. Middaugh, 74 Misc. Rep. 45, 133 N. Y. Supp. 647. See "Usury;' Dec. Dig. (Key-No.) §§ 66, 67; Cent. Dig. §§ 139-141.
99Cottrell v. Southwick, 71 Iowa, 50, 32 N. W. 22; Vaught v. Rider, 83 Va. 659, 3 S. E. 293, 5 Am. St. Rep. 305; France v. Smith, 87 Iowa, 552, 54 N. W. 366. Contra, where the transaction is a mere cover for a usurious loan. Luckens v. Hazlett, 37 Minn. 441, 35 N. W. 265. See "Usury," Dec. Dig. (Key-No.) §§ 66, 67; Cent. Dig. §§ 189-141.
1 Rev. St U. S. (1872) §§ 5197, 5198 (Act June 3, 1864, c. 106, § 30, 13 Stat 108 [U. S. Comp. St 1901, p. 3493]); Farmers' & Mechanics' Nat Bank v. Dearing, 91 U. S. 29, 23 L. Ed. 196. In New York, where by statute the exaction of usury by an individual makes a contract void, state banks and private banks and bankers have been put by statute upon the same basis as national banks and subject only to the same penalties. If, therefore, a note originally between individuals is void as to them because of usury, it is nevertheless valid and enforceable when discounted by a state or national bank before maturity and without notice of the usury. Schlesiuger v. Gilhooly, 189 N. Y. 1, 81 N. E. 619, 12 Ann. Cas. 1138. Contra, if the bank acquired the instrument with knowledge of the usury. Schlesinger v. Lehmaier, 191 N. Y. 69, 83 N. E. 657, 16 L. R. A. (N. S.) 626, 123 Am. St. Rep. 591. See "Banks and Banking," Dec. Dig. (Key-No.) § 270; Cent. Dig. §§ 1023-1053.


text:
Hughes, William 1587 or 1588-1663?
London, Printed by Tho. Roycroft, for Nath. Ekins, 1658-1675.
Title varies: v. 2, The second part of Reports and cases of law ... ; v. 3, The third part of the Reports of several excellent cases of law ... ; v. 4, The fourth part of the Reports of several cases of law ..
"Translated by me out of the original French copy"--"To the reader", v. 1, signed: Will. Hughes.
Imprint varies: v. 3, London, Printed by John Streater; and are to be sold by Henry Twyford, Thomas Dring, John Place, and William Place.-- v. 4, London, Printed for William Lee and Abel Roper.
Includes a few cases of the reigns of Henry VIII, Edward VI, Mary and James I.
a| Reports and cases of law argued, and adjudged in the courts of law, at Westminister. b| In the time of the late Queen Elizabeth ... [1540-1615] c| Collected by a learned professour of the law, William Leonard ... Published by Will. Hughes ... with alphabetical tables of the names of the cases, and of the matters contained in the book.
a| London, b| Printed by Tho. Roycroft, for Nath. Ekins, c| 1658-1675.
a| 4 v. c| 29-30 cm.
a| Title varies: v. 2, The second part of Reports and cases of law ... ; v. 3, The third part of the Reports of several excellent cases of law ... ; v. 4, The fourth part of the Reports of several cases of law ..
a| "Translated by me out of the original French copy"--"To the reader", v. 1, signed: Will. Hughes.
a| Imprint varies: v. 3, London, Printed by John Streater; and are to be sold by Henry Twyford, Thomas Dring, John Place, and William Place.-- v. 4, London, Printed for William Lee and Abel Roper.
a| Includes a few cases of the reigns of Henry VIII, Edward VI, Mary and James I.
a| Law reports, digests, etc. z| Great Britain.
a| Hughes, William, d| 1587 or 1588-1663?

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


On July 6, 2015, a pro se due process complaint was filed on behalf of __ , pursuant to the Individuals with Disabilities Education Improvement Act (IDEIA), 20 U.S.C.§1415 (f). Three days later, on July 9, 2015,1 was appointed as the Impartial Hearing Officer in the matter.
On August 5, 2015, the mandatory resolution period (8 NYCRR §200.5(j)(2)) expired, and five days later on August 10, 2015,1 held a hearing with an interpreter in the Mandarin Chinese language in attendance[I]. At the hearing[II] the Department of Education ("DOE") consented to pendency at the last agreed-upon placement for ___, which had been at the United Cerebral Palsy School ("UCP"). Tr. 4-5. Pendency at UCP was later memorialized in an Interim Order, dated September 4,2015.[III] Exhibit O.
However, matters in this case soon evolved, and __ 's parents contracted an Education Consultant, Bruce Ellis, who filed an amended due process complaint, dated October 4, 2015, on their behalf. Exhibit K. On November 13, 2015, the second mandatory resolution period expired. A telephonic pre-hearing conference was then conducted with party representatives on November 24, 2015.
Subsequently, a hearing pursuant to the Individuals with Disabilities Education Improvement Act (I.D.E.I.A.) was held to decide matters raised in the amended due process complaint. 20 U.S.C. §1415 (f). The hearing transpired on six dates: January 6, 2016, January 13, 2016, January 27, 2016, February 23, 2016, March 2, 2016, and March 30, 2016.[IV] At hearing, and throughout the remainder of the case, the parents added Brian Goldman, Esq. to its representation. Mr. Goldman, conducted the hearing on their behalf, with Mr. Ellis in attendance for all of it, except for January 27, 2016. The Department of Education ("DOE") was represented by Chanie Graus, District 15 Representative. The record was closed on May 6, 2016 upon the deadline for receipt of written closing briefs submitted by the parties, which I have entered into evidence as Exhibit IX (Petitioner), and Exhibit X (the DOE). Appended to this decision are lists of the persons in attendance at the hearings, documents received in evidence, and a statement regarding the right to appeal. See 8 NYCRR § 200.5(j)(5)(v).
A second IEP meeting was held on February 13, 2015 because the DOE representative was not in the room for the entire time, and also to recapitulate what had taken place with a more proficient Mandarin interpreter.
__ 's mother never intended to accept any CSE recommendation that did not place__ at UCP. Her visit to the proposed school placement was only for show.
__ 's mother was "mendacious" in professing that her knowledge of English was limited.
Therefore, the DOE disagrees with the parents' rejection of the DOE placement, and maintains that the parents' requested relief is not warranted.
The DOE has violated the IDEIA by not providing a proper interpreter during the IEP team meeting and during a "rushed" visit by ___'s mother to the proposed DOE placement, thereby negating requisite parental participation in the IEP process.
___ is making meaningful educational progress in his continued program at UCP.
Equitable considerations are in the parents' favor.
This case involves a disagreement between the parties over the provision of FAPE, so a look at pertinent law will be a necessary jumping off point.
(iii) Caused a deprivation of educational benefit.Defining the third possibility, the 2d Circuit, in Walczak v. Florida Union Free Sch. Dist, 142 F. 3d 119, later concluded that the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." "The purpose of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside." Walczak v. Fla. Union Free Sch. Dist. 142 F.3d 119, 130 (2d Cir. 1998) (internal quotation marks omitted). It then quoted from an earlier ruling it had made and reaffirmed that what "the statute guarantees is an 'appropriate education, "not one that provides everything that might be thought desirable by loving parents.'" Walczak at 132. (internal citation omitted). However, a school district must provide an IEP that affords the student with an opportunity greater than mere "trivial advancement." "An appropriate public education under IDEA is one that is "likely to produce progress, not regression." Walczak, id.
A threshold tool in providing a FAPE is a written, individualized education program (IEP) that is tailored to the unique needs of the handicapped child. The "centerpiece" of the IDEA'S education delivery system is the IEP. Murphy v. Arlington Central School District Board of Education 297 F.3d 195, 197 (2d Cir. 2002) (internal citation omitted). Indeed, the CSE "must consider the results of the [student's] initial or most recent evaluations" (8 NYCRR 200.4(d)(2)). To put it another way, an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(I). 8 NYCRR 200.4[d][I]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]). Furthermore, that evaluation must be "sufficiently comprehensive to identify all of the student's special education needs" (8 NYCRR 200.4(b)(6)(ix). The purpose of the comprehensive evaluation is to "provide relevant information that directly assists persons in determining the educational needs of the student" (8 NYCRR 200.4(b)(6)(xi), An evaluation must include a physical examination, a psychological evaluation, an educational evaluation, a social history, a classroom observation and "other appropriate assessments or evaluations." (8 NYCRR 200.4(b)(1).[6I] A student's IEP must reflect the results of current evaluations. 8 NYCRR 200.4(b)(iv) provides that an initial evaluation must include "an observation of the student's learning environment (including the regular classroom setting) or, in the case of a student of less than school age or out of school, an environment appropriate for a student of that age, to document the student's academic performance and behavior in the areas of difficulty."
A CSE that prepares a student's IEP must include the student's parents, a regular education teacher of the student if the student is or may be participating in a regular education environment, a special education teacher of the student, a school psychologist, a school district representative who is qualified to provide or supervise special education, an individual who can interpret the instructional implications of evaluation results, the school physician if requested by the parent in advance of the meeting, and the parent of another child with a disability (Education Law Section 4402 [b]; 8 NYCRR Section 200.3 [a] [ 1 ] [viii].
As indicated above, parents are an integral participant in the development of an IEP. As articulated by the Supreme Court: "Parents and guardians play a significant role in the IEP process. They must be informed about and consent to evaluations of their child under the Act. § 1414(c)(3). Parents are included as members of 'IEP teams,' §1414(d)(1)(B). They have the right to examine any records relating to their child, and to obtain an 'independent educational evaluation of the[ir] child.' § 1415(b)(1). They must be given written prior notice of any changes in an IEP, § 1415(b)(3), and be notified in writing of the procedural safeguards available to them under the Act, § 1415(d)(1). Schaffer v. Weast, 546 US 49, 53 (2005). The IEP must also contain present levels of performance, annual goals, and an objective method to evaluate whether those goals have been reached.
Should understanding of the English language be an issue, the district "must take whatever action is necessary to ensure that the parent understand the proceedings of the [CSE] meeting, including arranging for an interpreter for parents ... whose native language is other than English" (34 CFR 300.322[e]; 8 NYCRR 200.5(d)(5); 8 NYCRR 200.5 [j]  [vi]. The parent testified that her native language is other than English (Tr. p. 832).
Furthermore, parental participation at IEP meetings must be "meaningful". Deal v. Hamilton County Board of Education, 392 F.3d 840, 853 (6th Cir. 2005). It should be noted that the Sixth Circuit amplification of what constitutes FAPE was cited without comment in a Second Circuit case, A.D. v. M.D. individually and on behalf of E.D., Plaintiffs v. The Board of Education of the City School District of the City of New York, 690 F. Supp. 2d 193 (2009), at 217.
The IDEIA's preference is for disabled children to be educated as much as feasible with their non-disabled peers, or in what is referred to as the "least restrictive environment" ("LRE") capable of meeting their needs. Id. at 132; 20 U. S. C. § 1412(5). Classroom placement is also a component of a FAPE. For instance, a New York court remanded a case to an IHO to determine the appropriateness of the District's proposed classroom placement for a student. J.M. and N.M. v. N.Y.C. Department of Education, 2013 U.S. Dist. 159533 (S.D.N.Y. November 7, 2013).
In the seminal case of Burlington, the Supreme Court held that in an appropriate situation, retroactive tuition reimbursement to parents was allowable under the Act. To determine whether it was allowable, it formulated a three-part examination of what is required to be shown. The three parts, or "prongs" are whether: (1) The program offered by their school district was inadequate or inappropriate; (2) The program selected by the parent was appropriate; and, (3) If equities supported the parent's claim. School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985). See also, Florence County School District v. Carter, 510 U.S. 7 (1993). Should a parent fail in either of the initial two Prongs, the inquiry terminates at that point and reimbursement is denied. Id.
Then, more than two decades after Rowley, the Supreme Court put the burden of persuasion in an administrative hearing upon the party seeking relief. Schaffer, supra. However, a couple of years later, the New York State Legislature reversed that obligation, and placed the burden of production and persuasion upon the school district, except as regards a unilateral private placement by parents, where they are tasked with the burden. (See Educ. Law §4401 [l][c], as amended by Ch. 583 of the Laws of 2007).
Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not. See Werner v. Clarksiown Central school District, 363 F. Supp. 2d 656, 659 (S.D.N.Y.) 2005) Further, the Second Circuit emphasizes that even minor violations may cumulatively result in a denial of a FAPE. See R.E. v. NYC. Dep't of Educ., 694 F.3d 167, 175 (2d Cir.2012) The IEP meeting, which took place in two parts (am and pm) and is discussed directly below, had many such procedural failings, which easily added up to a denial of FAPE. Both the parents' attorney and the DOE representative proved to be proficient sleuths for their respective causes. (See Exhibits IX and X.) However, circumstance afforded the former the opportunity - which he grabbed hold of - to reveal damaging information that led directly to a central issue regarding parental participation in __'s bifurcated IEP meeting.
Consequently, there is a serious divergence in testimony that might have been clarified had the interpreter himself been called as a witness. However, Mr. Hui was not called, and thus was not able to testify himself as to his interaction with Ms. and as to whether and why he believed Ms. ____ understood what they were saying to each other. Additionally, no evidence has been introduced as to any of his independent qualifications to act as a Mandarin interpreter.
Testimony also cast doubt on whether Ms. ___ ever had any documents in her possession to examine even in English, much less than in Mandarin, as is required under New York State regulation. Indeed, the whole process was haphazard and deficient. District Representative Gonzalez agreed that parental input is very valuable, that parents know their children and that it's a "must" to have parental input. Tr. 292-293 However, while her statement is in accord with Rowley and its progeny, the actions of the Committee on Special Education on February 13, 2015 were not. In sum, neither meeting by itself was acceptable; nor did the two in combination cure the inadequacy. Considering both the actual time spent at the bifurcated IEP meeting and the dearth of requisite information compiled, the incomplete IEP team seemed to rush headlong to the finish line without completing the careful, prescribed steps to create an appropriate product. While the parent was physically present at the am meeting and on the telephone for the follow-up, to the extent that she was unable to understand what was being said, she might as well have been totally absent because she was unable to actually contribute to its outcome. Indeed, I find it somewhat ironic that while Ms. __ had difficulty in understanding the English language, that deficiency has been overwhelmed by what the English speaking DOE did not understand; or chose not to understand which were the needs of this 5 year old multiply disabled boy who could not speak for himself. It would appear that despite her English language deficit, the clearest, yet unlistened to voice, was that of__ 's mother, Ms.__ .
In sum, I find the partial absence of the district representative and the total absence of a representative from ___'s school, UCP, together with the lack of a parent member combined with the interpreting and translation deficiencies outlined immediately above to be procedural violations that led to a deprivation of educational benefit for ___.
In early August 2015 , Ms. ___ made a site visit to___ 's proposed placement at P141K. Ms. Simone Sanchez who accompanied Ms.__ during the visit, testified that she has an MA in special education, and has been working with a self-contained education program, designated as District 75 for the last 17 years.[X] Tr. 65 She said that Ms. ___ called her regarding the site visit, and did not ask for a "translator," despite communicating in "limited English." Tr. 68-69 This contrasts significantly with Ms. __'s testimony that at the visit, she indeed asked for an interpreter, and none was provided. The DOE introduced a "site visit" document that would indicate that Ms.____spoke more than the limited English to which Ms. Sanchez testified. However, I note that the document had a date of January 7, 2016, which is some three months after the parents' October 4, 2015 amended due process complaint was filed. Indeed, based on the testimony cited so far, I have doubts as to whether she could have supplied such detailed information. In sum, I find that an interpreter ought to have been provided for Ms.__ at the site visit.
Having found that the DOE failed to provide a FAPE, I now consider whether the parents met their burden by offering an educational program that is appropriate to meet the educational needs of young ___ I find that they have. In addressing the burden that the Parent must meet to satisfy Prong 2, the Second Circuit disseminates a detailed outline to help decide it.
Unfortunately, neither Ms. Barbieri nor any of__ 's other providers from UCP were invited to participate in the formulation of his IEP for the 2015-216 school year. However, what they most likely would have told the IEP team has been entered into evidence as Exhibits.
In sum, based on the credible testimony provided by UCP providers and by Ms.___ , I find that the record supports the finding that UCP is an appropriate placement for____ the 2015-2016 school year.
With respect to equitable considerations, the IDEIA allows that tuition reimbursement may be reduced or denied when a Parent fails to raise the appropriateness of an IEP in a timely manner and inform the school district of their intent to unilaterally place the child in a private school, fails to make their child available for evaluation by the school district, or upon a judicial finding of unreasonableness with respect to the actions taken by the Parent. 20 U.S.C. §1412[a][C][iii]; M.C. v. Voluntown Bd. Of Educ. 226 F3d 60, 68 (2d Cir.2000) See, Burlington, supra. However, none of those factors apply here. Ms. ___ fully cooperated with the DOE. She attended the morning CSE meeting, and participated in the brief afternoon telephone meeting. When one was not provided, she asked for a Notice of Recommendation. Indeed, the record has been silent regarding any lack of cooperation by Ms.____ , or by her husband. Accordingly, I find that equitable considerations favor reimbursement in the instant matter. See N.R. v. Department of Education of the City of New York, 2009 WL 874061 (S.D.N.Y.), which held that equitable considerations do not bar tuition reimbursement to a parent who provided notice of the child's educational needs and did not hinder the placement process. I have considered the parties remaining contentions and find that in light of my findings herein, I need not address them.
ORDERED that the Parents' request for tuition payment is GRANTED. Within thirty days, the Department of Education shall pay the retroactive direct payment of full tuition to the United Cerebral Palsy school of New York City for the cost of attendance associated with ___'s placement there for the 2015-2016 school year.
 Ordinarily I would have initially held a telephonic pre-hearing conference, but due to the request for an interpreter, I thought it best to have everyone meet in a hearing room instead.
 Sharlene Legendre, District 5 Representative, spoke for the DOE, and in off the record discussions it appeared that a settlement was in the offing, though no guarantee was given.
 The Order was signed by me on August 30,2015, and issued by the Hearing Office as of September 4, 2015, with a corresponding signature of the latter date.
 The word "translator" (one translates documents) has been used frequently throughout the hearing in place of the more correct word "interpreter" who is one interpreting orally from one language to another. For clarity, I will insert the word interpreter when appropriate, even if the word translator was used.
 Although the Individuals with Disabilities Education Act (I.D.E.A.) was amended in 2004 in the I.D.E.I.A., the cases cited herein remain authoritative.
 It must utilize "technically sound instruments" to "assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors" (8 NYCRR 200.4 (b)(6)(x)).
 agencies must review, and where appropriate revise, each child's IEP at least annually. §1414(a)(5). See also § 1413(a)( 11). Rowley, supra at 182; See Walczak. supra at 122.