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HUSBAND AND WIFE - COMMUNITY PROPERTY - STATUS OF PROPERTY. Separate property continues to be separate through all of its changes and transitions as long as it can be clearly traced and identified; and rents, issues, and profits from separate property remain separate property.
 SAME - SEPARATE PROPERTY - PRESUMPTIONS - CHANGE OF STATUS. When it is once made to appear that property was once of a separate character, it will be presumed that it maintains that character until some direct and positive evidence to the contrary is made to appear.
 SAME - COMMUNITY PROPERTY - CONFUSION OF FUNDS - SEPARATE PROPERTY COMBINED WITH PERSONAL SERVICES. Where separate property consists of real estate or an unincorporated business with which personal services ostensibly belonging to the community have been combined, all the income or increase will be considered as community property in the absence of a contemporaneous segregation of the income between the community and the separate estates.
 SAME - SEPARATE OWNERSHIP OF CORPORATION BY HUSBAND. Where the husband at the time of marriage owned all or substantially all of the stock of a corporation, and a salary is paid to the husband by the corporation, the community is thereby compensated for his services, and any dividends paid or any enhanced value of the stock resulting from profits reinvested in the corporation are separate property.
«1» Reported in 272 P. (2d) 125.
 SAME. Where, at the time of marriage, a husband owned all but two qualifying shares in a corporation, and it cannot be said that the salary paid him by the corporation during the marriage was inadequate, the increase in the value of the corporation during such period must be considered as the rents, profits, and increase of the separate property of the husband, and such increase is his separate property.
 SAME - EVIDENCE AS TO CHARACTER OF PROPERTY - PRESUMPTIONS AND BURDEN OF PROOF. Property acquired by either of the spouses during coverture is presumptively community property, and the burden is upon the party who contends that it is separate property to prove otherwise.
 SAME - EVIDENCE TO OVERCOME PRESUMPTION. The fact that property acquired during coverture is in the name of one of the spouses does not overcome the presumption that the property was acquired as community property.
 SAME. On an issue as to the status of property acquired during coverture, something more is required to establish its separate character than an assumption that it was derived from separate income, such assumption being founded upon the further assumption that the community had no income during the marriage except the salary received by the husband from a corporation whose stock was his separate property.
 SAME. The burden rests upon the spouse asserting the separate character of the property acquired by purchase during the marriage status to establish his or her claim by clear and satisfactory evidence; and this requirement is not met by the mere self-serving declaration of the spouse claiming the property in question that he acquired it from separate funds and a showing that separate funds were available for that purpose, it being necessary that separate funds used for such a purpose be traced with some degree of particularity.
 SAME - COMMINGLED FUNDS. Where separate funds are hopelessly commingled with those which it must be presumed are community funds, the entire mass is thereby rendered community property.
 SAME - CONTRACTS BETWEEN HUSBAND AND WIFE - ANTENUPTIAL AGREEMENTS - VALIDITY. Antenuptial agreements which are designed to alter or adjust the property rights of prospective spouses after marriage are not in themselves invalid.
 SAME. An engagement to marry creates a confidential relation between the contracting parties, and an antenuptial contract entered into after the engagement and during its pendency must be attended by the utmost good faith.
 SAME. The first inquiry in any case in which the validity of an antenuptial contract is attacked, must be directed to the adequacy of the consideration and its fairness.
 See 51 A. L. R. 130; 26 Am. Jur. 893.
 SAME. Where an antenuptial agreement provided that all property taken in the name of the husband should be his sole and separate property, the unlimited power thereby given him to secure for his separate estate property which would otherwise belong to the community indicated unfairness and a breach of trust by reason of the existing confidential relationship of the parties to the proposed marriage, and imposed upon the husband the burden of proving that the wife fully understood the nature and significance of the contract and that she freely and voluntarily entered into it; and in the absence of such proof, the contract cannot stand.
Appeal from a judgment of the superior court for King county, No. 442835, Wilkins, J., entered April 24, 1953, upon findings, dismissing an action to have certain property determined to be community property and subject to probate proceedings, tried to the court. Affirmed in part; reversed in part.
Carl Pruzan and Hay & Hamlin, for appellant.
Rummens, Griffin, Short & Cressman, for respondents.
This is a lawsuit by the administrator with the will annexed of the estate of Lucia Merlino, deceased, to have certain property determined to be community property and subject to probate proceedings. The surviving husband, Angelo Merlino, claims that the property in question is his separate property. He and his two sons by a former marriage are defendants. The lawsuit was dismissed by the trial court with prejudice. The administrator w. w. a. has appealed.
Lucia had two adult daughters and a son by a previous marriage.
When the marriage to Lucia occurred in 1929, Angelo owned real property valued at approximately $72,000; all but two qualifying (directorship) shares of the Metropolitan Grocery Company (book value at that date being $72,880.52); and in addition, there were certain balances owing to Angelo on various sums of money he had previously lent.
Lucia, at the time of her marriage to Angelo, owned a dairy ranch (operated upon leased land), on which there were nineteen head of cattle. The ranch was later sold to one of her daughters for four thousand dollars. Lucia owned a home in Roslyn, Washington, a cafe in Cle Elum, Washington, and had a bank account in an undisclosed amount.
property then owned anti property subsequently taken in her name. The contract also provided that Angelo would maintain a five-thousand-dollar policy of insurance on his own life in favor of Lucia. She was to insure her own life for three thousand dollars, naming Angelo as beneficiary. After five or six years, both policies were allowed to lapse and were never reinstated. Angelo further agreed to provide in his will that, should Lucia survive him, she would have the use and occupancy of their family home during the remainder of her natural life, so long as she did not permanently remove therefrom. This provision was only partially complied with. Under Angelo's will, Lucia's right to use the family home would be cut off upon her remarriage, or if she should voluntarily absent herself from the home for a period of thirty days.
After the marriage in 1929, Angelo and his two sons continued to operate the importing and grocery business until 1945, at which time the corporation was dissolved. In 1946, Angelo sold the assets of the dissolved corporation on a conditional sale contract to his two sons for $133,344.28. This contract provides that whatever balance is due at the time of Angelo's death will be discharged.
Lucia; (b) a $5,000 U. S. Government bond, Series E, payable to bearer, purchased by Angelo in 1944; (c) three promissory notes, executed by Dominick and Pete DeSanto (balance at the date of Lucia's death totaling $19,301.11); (d) real property described as lot one, block four, Terry's Fifth Addition to Seattle, purchased from King county in 1939 for $260, with improvements placed thereon sometime after 1939.
We note that appellant also claims a community interest in $2,300, in silver dollars, which were kept in containers, apparently for several years, in Angelo's house. The only evidence in the record bearing on this $2,300 came from Angelo, who testified that the silver coins disappeared the day before Lucia's death. Appellant offered no proof that either Angelo or his sons have had possession of this asset at any time since the death of Lucia. Because of this failure of proof, we do not think that the matter of this item is before us, and we deem it unnecessary to determine its status as community or separate property.
It will be recalled that, prior to Lucia's death, the corporation had been dissolved and its assets sold to Angelo's two sons under a conditional sale contract. At the time Lucia died, there was still due on the contract approximately $89,000; also, Angelo had in his possession several uncashed checks representing payments made by the sons on the contract. Appellant asserts a community interest in the balance due on the contract, such interest allegedly representing the increased value of the grocery and importing business claimed to have accrued after the marriage as a result of the community efforts or labor of Angelo.
community property laws of Washington, the above-listed assets are his separate property.
In the ensuing discussion we shall, for the most part, refer to the questions raised by assignments of error rather than to the assignments specifically and individually. With this observation, we shall now consider whether Lucia acquired any community interest in the corporation. It will be recalled that, prior to the marriage and until the time in 1945-1946, when the corporation was dissolved and its assets sold to Angelo's two sons, substantially all of the corporate stock was owned or held by Angelo, ostensibly as his separate estate. If, solely by the operation of the community property rules of this state, the corporation at the time of its dissolution was the separate property of Angelo, no consideration of the effect of the antenuptial contract is necessary to establish Angelo's claim of separate ownership of the conditional sale contract, the balance due thereon, and the uncashed checks representing monthly payments. Accordingly, the problem of the ownership of the corporation will now be considered solely in relation to our community property law.
 It is a well settled principle that separate property continues to be separate through all of its changes and transitions as long as it can be clearly traced and identified; furthermore, that rents, issues, and profits from separate property remain separate property. In re Brown's Estate, 124 Wash. 273, 214 Pac. 10; Rogers v. Joughin, 152 Wash. 448, 277 Pac. 988; State ex rel. Van Moss v. Sailors, 180 Wash. 269, 39 P. (2d) 397; In re Binge's Estate, 5 Wn. (2d) 446, 105 P. (2d) 689; DuPont de Nemours & Co. v. Garrison, 13 Wn. (2d) 170, 124 P. (2d) 939; Burch v. Rice, 37 Wn. (2d)185, 222 P. (2d) 847.
maintains that character until some direct and positive evidence to the contrary is made to appear.' (Italics ours.)"
Appellant concedes that, at the time of the marriage, the corporation was Angelo's separate property; but argues, as mentioned above, that the increase in its value from the time of the marriage until the dissolution in 1945 was community property because it was attributable to the community labor or efforts of Angelo. During the pertinent years, Angelo paid himself a salary from the corporation, averaging $1,858 a year. This salary was unquestionably community property. However, the trial court found that the salary was used up in taking care of the living expenses of the Merlinos. From our review of the record, we are not inclined to disturb this finding of the trial court.
 Where separate property, owned at the time of marriage, is combined with community labor of the husband to create profits or to increase the value of the original Separate property, with both the community and the separate estates asserting ownership of such increment, the courts are confronted with directly conflicting principles, each demanding exclusive application. In analyzing the decisions dealing with this problem, the principle is stated that the solution of each case depends upon its own particular facts. In re Hebert's Estate, 169 Wash. 402, 14 P. (2d) 6. However, some other more helpful principles seem to emerge. For example, it is clear that, where the separate property in question is real estate or an unincorporated business with which personal services ostensibly belonging to the community have been combined, the rule is that all the income or increase will be considered as community property in the absence of a contemporaneous segregation of the income between the community and the separate estates. Salisbury v. Meeker, 152 Wash. 146, 277 Pac. 376; In re Witte's Estate, 21 Wn. (2d) 112, 150 P. (2d) 595.
See, also, In re Dewey's Estate, supra.
operation of the corporation was financed in large measure by community credit. Dividends were laid from time to time and were commingled with community funds. The husband and wife treated the corporate property during their lives as community property. Finally, the original separate investment was almost insignificant as compared to the value of the property at the time of the wife's death. These several distinctions are convincing to us that the Buchanan case is not controlling in connection with our present inquiry.
It is true that the salary paid to Angelo Merlino during his marriage was rather small. A persuasive argument can be made that, where a husband owning a large corporation pays to the community a salary which is grossly unfair, such salary should be disregarded with the result that profits accruing partly from community labors and partly from natural increase of the separate property will be held to be commingled and community property. However, we need not pass on this question here.
Whether a salary of $1,858 a year is fair must depend largely upon the earnings of the corporation during the time such a salary was paid. The evidence on this underlying question is wholly insufficient to support any conclusion as to the unfairness of the salary paid to Angelo. The value of the corporation in 1929 is in dispute. The book value then was $72,880. Angelo Merlino's attorney testified that he thought the corporation was then worth $120,000. Similarly, the value of the corporation in 1945, when it was dissolved, was not proved. The assets of the business were then sold by Angelo to his sons for $133,344.28; but, in view of the close relationship between the parties, this figure cannot be taken as conclusive of the actual value of the corporation. From the record, we have not been able to determine what the corporate earnings were from 1929 until 1945. As a result, we cannot say that the salary paid by the corporation to Angelo during these years was inadequate.
marriage must be considered as the rents, profits, and increase of Angelo's separate property, and, therefore, this increase is his separate property. It follows that the balance due upon the contract of sale of the assets of the dissolved corporation, as well as the uncashed checks given by Angelo's sons in payment thereon, are the separate property of Angelo. As mentioned heretofore, it is unnecessary to consider the legal significance of the antenuptial contract between Angelo and Lucia Merlino in so far as these assets are concerned.
marriage to Lucia, there is no credible evidence in the record to so indicate.
See, also, Stephens v. Nelson, 37 Wn. (2d) 28, 221 P. (2d)520.
 Aside from the provisions of the antenuptial agreement and thinking for the moment solely in terms of community property law, the fact that much of the property in question is in the name of Angelo Merlino is not controlling. We have held on several occasions that, where a spouse acquired money and placed it in a bank account in his or her own name, this fact does not overcome the presumption that the property was acquired as community property. Plath v. Mullins, 87 Wash. 403, 151 Pac. 811; Jones v. Duke, 151 Wash. 108, 275 Pac. 72.
 We have studied the record and respondents' brief searching for evidence that might overcome the presumption. We have found only an assumption that this property was derived from separate income. This assumption is founded upon the further assumption that the community had no income during the marriage, except the $1,858 a year salary from the corporation. Something more is required to establish the separate character of the property concerned.
"The burden rests upon the spouse asserting the separate character of the property acquired by purchase during the marriage status to establish his or her claim by clear and satisfactory evidence. E. I. DuPont de Nemours & Co. v.
 Even if it should be assumed that a portion of the savings accounts and other assets were derived from separate income of Angelo, such funds are hopelessly commingled with those which we must presume are community funds, thus rendering the entire mass community property. In re Dougherty's Estate, 27 Wn. (2d) 11, 176 P. (2d) 335.
It remains for us to consider the antenuptial contract between Angelo and Lucia Merlino in so far as it may affect the status of the assets which are unrelated to Angelo's corporate business. The pertinent provisions of the antenuptial agreement are quoted hereinbefore.
It is respondents' position that, by virtue of the abovementioned contractual provisions, all property acquired by the parties after their marriage was the separate property of one or the other of them, and, conversely, that there was no community property. A careful reading of the contract does not bear out this conclusion. It is not so broad as contended. There are three parts to the pertinent paragraph: (1) All property owned by Angelo at the time of marriage to Lucia, together with all increase thereof, no matter how derived, was to be his separate property. This provision does not apply to the property under consideration, since it was acquired after marriage and is not shown to be an increase or increment of property owned at marriage. (2) All property, the title to which was taken in Angelo's name. This is applicable to all the property under consideration except the U. S. bond. The bond was not in Angelo's name, but was payable to bearer. (3) All property standing in Angelo's name at the time of his death. This provision cannot aid Angelo, because he is still alive.
The gist of the contract provisions is that they do not purport or attempt to alter the status of property acquired after the marriage, except (a) that which is an increase to separate property owned before marriage, or (b) that "taken . . . in the name" of Angelo.
It may be seen that only the second of the contractual provisions above need be considered. Under it, the items of property, which otherwise would be community property, purportedly become Angelo's separate property merely by reason of the fact they are "taken . . . in the name" of Angelo. Appellant agrees this is the purport of the contract provision, but strongly contends that the agreement is invalid and is not binding upon Lucia or her estate. Inter alia, appellant argues that Angelo Merlino did not meet the strict requirements of good faith imposed upon an intended husband entering into such a contract with his intended wife.
"To render an ante-nuptial agreement valid, there must be a fair and reasonable provision therein for the wife, or - in the absence of such provision - there must be full and frank disclosure to her of the husband's worth before she signs the agreement, and she must sign freely and voluntarily, on competent independent advice, and with full knowledge of her rights. . . .
"Parties to an ante-nuptial agreement do not deal at arm's length with each other. Their relationship is one of mutual trust and confidence. They must exercise the highest degree of good faith, candor and sincerity in all matters bearing on the proposed agreement."
"An engagement to marry creates a confidential relation between the contracting parties and an ante-nuptial contract entered into after the engagement and during its pendency must be attended by the utmost good faith."
"The wife has a vested property right in the community property equal with that of her husband and in the income of the community, including salaries or wages of either husband or wife, or both." Occidental Life Ins. Co. v. Powers, 192 Wash. 475, 484, 74 P. (2d) 27, 114 A. L. R. 531.
There are other considerations which may bear upon the fairness of antenuptial contracts. These include the amount or respective values of the estates of the intended husband and wife, Warner v. Warner, 235 Ill. 448, 85 N. E. 630; the children of each by a prior marriage, Juhasz v. Juhasz, supra; and who prepared the agreement and the business experience of each, Mines v. Phee, 254 Ill. 60, 98 N. E. 260.
the contract, and that she freely and voluntarily entered into it. Respondents did not present such proof. The record discloses that, although Lucia had some business experience, she could neither read nor write. Furthermore, the contract was prepared by Angelo's attorney, while Lucia apparently was provided with no independent legal or other advice.
We have become convinced that the contract cannot stand. With the exception of the assets traceable to the corporation owned by Angelo prior to his marriage to Lucia, the property, itemized and discussed above, is community property.
None of the parties will be allowed costs on this appeal.
The decree is reversed, in part, and is remanded with instructions to enter a decree in conformity with the views expressed herein.
GRADY, C. J., SCHWELLENBACH, HAMLEY, and DONWORTH, JJ., concur.

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Outdoor activities (camping, hiking, fishing); The home front (my kids, kids sports, untangling fish lines, raising animals); Reading biographies and history; Traveling more.
Holmgren, M.; Wilkerson, R.; Siegel, R.; Ransom, J.; Jenkins, Kurt J.; Boetsch, J.; Ray, Chris; Holmgren, Mandy; Wilkerson, Robert L.; Siegel, Rodney B.; Boetsch, John R.; Jenkins, Kurt J.; Ransom, Jason I.
Ray, Chris; Saracco, James F.; Holmgren, Mandy; Wilkerson, Robert L.; Siegel, Rodney B.; Jenkins, Kurt J.; Ransom, Jason I.; Happe, Patricia J.; Boetsch, John R.; Huff, Mark H.
Ray, C., J. F. Saracco, M. L. Holmgren, R. L. Wilkerson, R. B. Siegel, K. J. Jenkins, J. I. Ransom, P. J. Happe, J. R. Boetsch, and M. H. Huff. 2018. Landbird population trends in mountain and historical parks of the North Coast and Cascades Network: 2005–2016 synthesis. Natural Resource Report NPS/NCCN/NRR—2018/1673. National Park Service, Fort Collins, Colorado.
Ray, Chris; Saracco, James; Jenkins, Kurt J.; Huff, Mark; Happe, Patricia J.; Ransom, Jason I.
Ray, C., Saracco, J.F., Holmgren, A.L., Wilkerson, R.L., Siegel, R.B., Jenkins, K.J., Ransom, J.I., Happe, P.J., Boetsch, J.R., Huff, M.H., 2017, Recent stability of resident and migratory landbird populations in National Parks of the Pacific Northwest: Ecosphere, v. 8, no. 7, p. e01902, http://doi.org/10.1002/ecs2.1902.
East, A.E., Jenkins, K.J., Happe, P.J., Bountry, J.A., Beechie, T.J., Mastin, M.C., Sankey, J.B., and Randle, T.J., 2017, Channel-planform evolution in four rivers of Olympic National Park, Washington, USA: the roles of physical drivers and trophic cascades: Earth Surface Processes and Landforms, doi: 10.1002/esp.4048.
Moriarty, Katie; Howell, Betsy; Morozumi, Connor; Happe, Patti; Jenkins, Kurt J.; Aubry, Keith B.
Moriarty, K., Howell, B., Morozumi, C. Happe, P., Jenkins, K., and Aubry, K. Final Interagency Special Status/Sensitive Species Report for the 2016 Field Season.
Jenkins, Kurt J.; Happe, Patricia J.; Beirne, Katherine F.; Baccus, William T.
Jenkins, K.J., Happe, P.J., Beime, K.F., and Baccus, W.T., 2016, Mountain goat abundance and population trends in the Olympic Mountains, northwestern Washington, 2016: U.S. Geological Survey Open-File Report 2016–1185, 21 p., https://doi.org/10.3133/ofr20161185.
Happe, Patricia J.; Jenkins, Kurt J.; Kay, Thomas J.; Pilgrim, Kristie; Schwartz, Michael K.; Lewis, Jeffrey C.; Aubry, Keith B.
Facka, Aaron N; Lewis, Jeffrey C.; Happe, Patricia; Jenkins, Kurt J.; Callas, Richard; Powell, Roger A.
Jenkins, K.J., Starkey, E.E., 1996, Simulating secondary succession of elk forage values in a managed forest landscape, western Washington: Environmental Management, v. 20, no. 5, p. 715-724.
Jenkins, K.J., 1995, The Mentasta caribou herd InLaRoe, E.T., Farris, G.S., Puckett, C.E., Doran, P.D., Mac, M.J., eds., Our Living Resources: A Report to the Nation on the Distribution, Abundance, and Health of U.S. Plants, Animals, and Ecosystems: Washington DC, US National Park Service, National Biological Service, p. 357-358.
Jenkins, K.J., Starkey, E.E., 1993, Winter forages and diets of elk in old-growth and regenerating coniferous forests in western Washington: American Midland Naturalist, v. 130, no. 2, p. 299-313.
Easterly, T.G., Jenkins, K.J., McCabe, T.R., 1992, Efficacy of orally administered ivermectin on lungworm infection in free ranging bighorn sheep: Wildlife Society Bulletin, v. 20, p. 34-39.
Jenkins, K.J., Starkey, E.E., 1991, Food habits of Roosevelt elk: Rangelands, v. 13, no. 6, p. 261-265.
Easterly, T.G., Jenkins, K.J., 1991, Forage production and use on bighorn sheep winter range following spring burning in grassland and ponderosa pine habitats: Prairie Naturalist, v. 23, no. 4, p. 193-200.
Jenkins, K.J., Happe, P.J., Wright, R.G., 1990, Evaluating above-snow browse availability using nonlinear regressions: Wildlife Society Bulletin, v. 18, p. 49-55.
Jenkins, K.J., Wright, R.G., 1988, Resource partitioning and competition among cervids in the northern rocky mountains: Journal of Applied Ecology, v. 25, p. 11-24.
Jenkins, K.J., Wright, R.G., 1987, Dietary niche relationships among cervids relative to winter snowpack in northwestern Montana: Canadian Journal of Zoology, v. 65, p. 1397-1401, https://doi.org/10.1139/z87-220.
Jenkins, K.J., Wright, R.G., 1987, Simulating succession of riparian spruce forests and white-tailed deer carrying capacity in northwestern Montana: Western Journal of Applied Forestry, v. 2, no. 3, p. 80-83.
Leslie, D.M., Jenkins, K.J., 1985, Rutting mortality among male roosevelt elk: Journal of Mammalogy, v. 66, no. 1, p. 163-164.
Jenkins, K.J., Starkey, E.E., 1984, Habitat use by Roosevelt elk in unmanaged forests of the Hoh Valley, Washington: Journal of Wildlife Management, v. 48, no. 2, p. 642-646, https://doi.org/10.2307/3801209.
Jenkins, K.J., Starkey, E.E., 1982, Social organization of Roosevelt elk in an old-growth forest: Journal of Mammalogy, v. 63, p. 331-334.
The USGS and National Park Service (NPS) have published the first Natural Resource Condition Assessment for Olympic National Park. A Natural Resource Condition Assessment, or NRCA, is a report that evaluates a subset of important natural resources in a NPS Unit.
The state-threatened western gray squirrel occurs in the northern Cascade Range, Washington, where long-term fire suppression has increased risk of catastrophic wildfire.


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On June 10th, 2014, the United States Court of Appeal for the 2nd Circuit handed down its decision in Authors Guild v. HathiTrust, a case dealing with copyright and the digitization of print books. The Court found that Hathitrust’s digitizing books for the purpose of enabling research constitutes fair use.
1) Search functionality – The digital library lets a user search for terms contained in books included in the database. For books that are currently protected by copyright, the search engine will not display any text unless expressly authorized to do so by the copyright holder; it will merely display page numbers of books contained in the catalogue in which the search terms appear.
2) Enabling individuals with “print disabilities” – Individuals with print disabilities are able to access full text versions of the books contained in the catalogue. Print disabilities includes people with perceptual disabilities such as blindness, but also includes individuals with other physical disabilities that would prevent them from being able to turn the pages of a print book.
3) Book replacement – The system would allow member institutions to print replacement copies of physical books in their catalogues that have been lost, damaged or stolen (and a new copy cannot be obtained at a “fair price”).
The Authors Guild and other individual and institutional Plaintiffs sued Hathitrust in the District Court for injunctive and declaratory relief. Hathitrust moved for summary judgement arguing that its digitization project constituted fair use. It also argued that allowing access to full text versions of the books by individuals with print disabilities is protected by §121 of the U.S. Copyright Act (Also known as the “Chafee amendment”).
(a) Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities.
At the District Court level, the Trial Judge found that all three of the above listed functionalities constituted fair use. The Judge found specifically that the uses were “transformative”. In Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the United States Supreme Court determined that when the use of a copyright protected work is transformative in nature, it is more likely to be considered fair.
The Judge also determined that Hathitrust’s argument based on the Chafee amendment was sound. According to §121 authorized entity means: “a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities”. The Trial Judge found that Hathitrust’s members could fit within that definition.
Hathiturst also made an argument as to the standing of some of the Plaintiffs. The Court acquiesced here as well and struck certain institutional Plaintiffs, including the Writers’ Union of Canada and the Union des Écrivaines et des Écrivains Québécois, from the suit.
The Court of Appeal for the 2nd Circuit reviewed the case de novo. They found that the Trial Judge’s decision as to the standing of certain Plaintiffs was right in law. Those Plaintiffs were not themselves the owners or exclusive licensees of the copyright in the works of their members. 17 U.S.C. §501(b) only allows owners of “an exclusive right under a copyright” to sue for infringement thereof.
Moving to the fair use argument, the Court of Appeal agreed with the Trial Judge that all three functionalities constituted fair use. The Court went through a rather detailed description of the fair use doctrine and its position of central importance to copyright law.
Each of the three functionalities was submitted to this four-factor analysis. Dealing first with the search functionality, the Court found this to be a fundamentally transformative use of the work. For the use of a work to be transformative, the Court writes that there must be more than a mere repackaging or republishing.
The Court of Appeal compares the search functionality with other instances of transformative use culled from the jurisprudence. It found that “Full‐text search adds a great deal more to the copyrighted works at issue than did the transformative uses we approved in several other cases”. One of the case pointed to was Prince v. Cariou (Discussed here), a case in which an appropriation artist used a photographer’s photos to create a collage type work. In that decision, the 2nd Circuit found that the use was transformative, even though the artist Richard Prince was operating in the same medium as Patrick Cariou, the photographer.
The Court of Appeal more or less brushes off the second fair use factor as being inconsequential. They found that factors three and four favoured a finding of fair use.
In addition to being covered under the Chafee amendment, the Court found that the making available of full-text versions of the works for people with print disabilities constitutes fair use. This view was expressly endorsed by the U.S. Supreme Court in Sony Corp. of America v. Universal City Studios, Inc. Though the Court of Appeal found that the second factor militated against a finding of fair use, they found that factors one, three and four cut in favour of it.
Finally, with regards to the preservation of books, the Court of Appeal felt that the matter was improperly dealt with by the District Court. They vacated the Trial Judge’s order and remanded this issue for a technical reason – namely that the record did not show that any of the Plaintiffs owned copyright in books that have been or are currently affected by this functionality. Since the U.S. Constitution only allows Federal Courts to hear actual “cases and controversies”, the Plaintiffs did not have standing with reference to speculative claims.
This decision is particularly important in light of the coming decision in Authors Guild v. Google, a case dealing with Google’s own book digitization project. One important factual difference between this case and the Google Books case is that when an individual searches for text in Google, the search engine will actually display snippets of copyright protected works containing the search terms. The Hathitrust Digital Library merely supplies the page numbers of the books in which the search terms may be found. This, however, seems far from dispositive given the Court’s emphasis on the transformative nature of full-text searchability of books.
On that point, I have to disagree with the 2nd Circuit’s reasoning. While enabling the full-text search of entire catalogues of books is certainly innovative and useful, I am not sure it is transformative. When one thinks of a transformative work, one thinks of a remixing or mashing-up of existing content to create substantially new content. In the Cariou case cited by the Court of Appeal, the artist Richard Prince took photographs taken by Cariou and altered them in a visually obvious manner by superimposing other images onto them and adding visual effects.
When Hathitrust (or Google) digitizes a book, the substance of the book remains exactly the same. While there is a format-shift taking place, there is no transformation of the work on a substantive level. Furthermore, even if there is a transformation, it is not being carried out by the people ultimately making use of the copyright protected work.
While it carries no weight in the U.S., the Supreme Court of Canada’s decision in Alberta (Education) v. Access Copyright found that the relevant perspective for determining whether a dealing is fair is that of the end user of the copyrighted work. That case dealt with the ability of teachers in Alberta to photocopy portions of literary works in order to give their students reading and research projects. Access Copyright argued that because teachers made several copies of copyright protected works (one for each student), the dealing was less fair. The Court disagreed. It wrote that the relevant perspective was that of the student (the individual engaging in the protected activity, private study) and not the teacher who was merely acting as an intermediary.
Applied to the current case, the 2nd Circuit asked and answered the wrong question. Instead of deciding whether Hathitrust’s digitizing is a transformative use of the copyrighted content (Which I think it is not), they should have instead asked if users interacting with the books in this novel way –i.e. searching the full-text of the book in order to find specific terms- is a transformative use of the book (which I think it is). I am therefore of the opinion that the 2nd Circuit reached the right result for the wrong reasons; and they did so employing an ill-fitting analysis.


22 May 2000. Thanks to EH.
FRANKFURT GARBUS KLEIN & SELZ, P.C.
Attorneys for Frankfurt Garbus Klein & Selz, P.C.
This is an action by major motion picture studios, including Time Warner Entertainment Company L.P. ("Time Warner"), pursuant to the Digital Millenium Copyright Act1 to enjoin defendants from posting on Internet web sites a computer program called DeCSS, which allegedly defeats an encryption system used by plaintiffs on digital versatile disks (DVDs) containing their copyrighted motion pictures. The matter now is before the Court on Time Warner's motion to disqualify defendants' new counsel on the ground that these attorneys currently are representing Time Warner in another case.
1 17 U.S.C. § 1201 et seq.
Shortly after the commencement of this action, plaintiffs moved for a preliminary injunction. Defendants were represented at that time by attorneys who no longer are active in the case. The motion was granted for reasons set forth in an opinion, familiarity with which is assumed.2 Although the Court offered the defendants an immediate trial, that offer was declined and the case became inactive for a time. Indeed, the original defendants other than Eric Corley settled with plaintiffs.
2 Universal City Studios, Inc. v. Reimerdes, 82 F. Supp.2d 211 (S.D.N.Y. 2000).
The Court conducted a Rule 16 conference on March 20, 2000 at which Martin Garbus, Esq. of Frankfurt, Garbus, Klein & Selz, P.C. appeared for the first time on behalf of Corley. After conferring with counsel, the Court fixed a schedule and a trial date. Plaintiffs raised no objection to the Frankfurt firm's appearance.
On April 5, 2000, plaintiffs moved to expand the preliminary injunction to restrain defendants not only from making the offending computer program available on their web sites, but from linking to other web sites on which the program remains available.3 Three weeks later, plaintiff Time Warner moved to disqualify defendants' new counsel on the ground that he simultaneously is representing it in another action.
At present, the parties in this action are engaged in expedited discovery. Trial is scheduled for July 17, 2000.
4 99 Civ. 11480 (AGS).
5 Montan Decl. ¶ 4-5.
9 See Chilton Decl. ¶ 2.
10 Montan Decl. ¶ 8.
13 Chilton Decl. ¶ 4.
14 Id. ¶¶ 6-7 & Ex. B.
Attorneys practicing in this Court must adhere to the Code of Professional Responsibility adopted by the Appellate Division of the New York Supreme Court.15 Canon 5 of the Code states that "[a] lawyer should exercise independent professional judgment on behalf of a client," and Disciplinary Rule DR 5-105 proscribes a lawyer from representing a client if that representation is of interests differing from or adverse to those of another existing client.
15 See S.D.N.Y. CIV. R. §§ 1.3, 1.5(b)(5).
16 528 F.2d 1384 (2d Cir. 1976).
17 Id. at 1387. Accord, e.g., RESTATEMENT OF THE LAWGOVERNING LAWYERS § 209(2) (Prop. Final Draft No. 1 1996) (lawyer may not represent one client against another currently represented client even if matters unrelated).
Plaintiff's counsel was a partner of two separate firms -- one of which represented Cinema 5, Ltd. in the matter before the court, the other which represented Cinerama in an unrelated matter. There was no question that plaintiff's counsel -- or his firm -- as directly representing both plaintiff and defendant simultaneously.
18 Hartford Accident & Indemnity Co. v. RJR Nabisco, Inc., 721 F. Supp. 534, 538 (S.D.N.Y. 1989) (Walker, J.); Carro, Spanbock, Kaster, & Cuiffo v. Rinzler, No. 88 Civ. 5280 (MJL), 1992 WL 196758 (S.D.N.Y. 1992).
This more flexible approach stems from Glueck v. Jonathan Logan, Inc.,19 where the circuit faced the question whether a law firm's suit against a member of an association which it represented implicated the standard of Cinema 5. The court framed the inquiry as "whether there exist sufficient aspects of an attorney-client relationship for purposes of triggering inquiry into the potential conflict involved."20 The court answered this question in the negative, holding that (1) the association member was a client only in a vicarious sense, and (2) the "risks against which Canon 5 guards will not inevitably arise" in such a situation.21 In those situations, a standard less stringent than Cinema 5's per se test applies.
19 653 F.2d 746 (2d Cir. 1981).
20 Glueck, 653 F.2d at 748-49 (internal citations omitted).
This Court built upon Cinema 5 and Glueck in Commercial Union Insurance Co. v. Marco International Corp.,22 a case presenting the question whether an insurance company's long-standing counsel was disqualified from representing the carrier in coverage litigation with its insured because it simultaneously was representing the insured, as a nominal plaintiff, in bringing a subrogation claim to recover for the benefit of the carrier a loss for which the carrier already had indemnified its insured. The Court examined the relationships among the insured, the carrier and the attorneys. It found that the insured was obliged to assign to the carrier its right to prosecute and recover on any claim against third parties for the loss on which the carrier made payment. Thus, the insured had no significant economic or other interest in the subrogation case. Moreover, in light of the provisions of the policy, the insured had no role in selecting, paying or controlling the actions of counsel in pursuing that action. In consequence, the Court held that the lawyers' client in the subrogation case in substance was the carrier, not the insured in whose name the case was brought, and refused to disqualify counsel.
22 75 F. Supp.2d 108 (S.D.N.Y. 1999).
Commercial Union, upon which Frankfurt places its principal reliance, does not support its contention that there is no breach of the canons and disciplinary rules here. Unlike the insured in Commercial Union, Time Warner has substantial interests at stake in the Stouffer case. It appears, in fact, that its interests there substantially exceed those of either Scholastic or Rowling. If Stouffer were to prevail in her contention that she owns the copyright and trademark in "Muggles," the value of Time Warner's film and ancillary merchandising rights in the Harry Potter books would be impaired. Indeed, the complaint in Stouffer alleges that Time Warner currently is developing a theatrical motion picture referring to the imaginary world created by Rowling in the Harry Potter books and that all of the plaintiffs in the Stouffer case have plans for merchandising projects intended to build on the books.23 Moreover, while the extent to which it has participated in the Stouffer case thus far appears to have been limited, Time Warner house counsel have been provided drafts of legal papers in advance of filing and have the right to control the actions of the Frankfurt firm as its counsel. This situation is quite distinct from that in Commercial Union, where the insured had assigned all of its rights to the carrier and was obliged to cooperate with the carrier's assertion of the subrogation claim. Thus, Time Warner, unlike the insured in Commercial Union, is party to a real attorney-client relationship with the Frankfurt firm. The fact that it agreed to use Scholastic's litigation counsel in Stouffer and, indeed, that there may be little love lost between Time Warner and Mr. Garbus by virtue of events gone by cannot detract from this fact. When the Frankfurt firm agreed to represent Time Warner along with Scholastic and Ms. Rowling, it surrendered the right to represent another client in litigation against any of them.
23 Stouffer cpt. ¶ 19.
The fact that the Frankfurt firm has responded to the motion to disqualify in part by moving in Stouffer for leave to withdraw as counsel for Time Warner is of no assistance to it. "It is . . . established law that an attorney cannot avoid disqualification under the Cinema 5 rule merely by 'firing' the disfavored client, dropping the client like a hot potato, and transforming a continuing relationship to a former relationship by way of client abandonment."24 Indeed, the offense inherent in taking on the conflicting representation is compounded by seeking to "fire" the client in pursuit of the attorney's interest in taking on a new, more attractive representation. If, as one judge has written, "the act of suing one's client is a 'dramatic form of disloyalty,' "25 what might be said of trying to drop 25 the first client in an effort to free the attorney to pursue his or her self-interest in taking on a newer and more attractive professional engagement?
24 Burda Media, Inc. v. Blumenberg, No. 97 Civ. 7167 (RWS), 1999 WL 1021104, at *3 n.1 (S.D.N.Y. Nov. 8, 1999). Accord, Strategem Dev. Corp. v. Heron Int'l N.V., 956 F. Supp. 789, 794 (S.D.N.Y. 1991) (Counsel "cannot undertake to represent two potentially adverse clients and then . . . pick and choose between them.").
25 Id. (quoting British Airways, PLC v. Port Authority, 862 F. Supp. 889, 899 (E.D.N.Y. 1994)).
In response to these considerations, the Frankfurt firm has submitted a declaration of Professor Charles W. Wolfram, who contends that Time Warner is a "non-primary" or "accommodation" client, that only "primary" clients may seek disqualification of counsel afflicted with conflicts, and in any case that a lawyer representing a non-primary client "can drop the accommodation client (like a hot potato, or otherwise) and file suit against the former accommodation client."26 He relies principally on Allegaert v. Perot27 and the proposed Restatement. With respect, this Court disagrees.
26 Wolfram Decl. ¶¶ 14-15.
27 565 F.2d 246 (2d Cir. 1977).
28 RESTATEMENT OF THE LAWGOVERNING LAWYERS § 209(2) (Prop. Final Draft No. 1 1996).
Second, Professor Wolfram's conclusion that Time Warner is a non-primary or accommodation client rests on a series of factual assumptions -- that Time Warner must have understood that the Frankfurt firm's ultimate allegiance is to Scholastic in the event of a conflict between Time Warner and Scholastic, that Time Warner "could not reasonably expect that the law firm would keep any information of interest to [Scholastic] confidential from it,"29 that Time Warner has no economic stake in the Stouffer case because "(as I assume) its interests [are] fully protected pursuant to its contractual arrangements for indemnification with either or both of Ms. Rowling and Scholastic,"30 that Time Warner was named as a plaintiff in Stouffer only at the direction of Scholastic,31 that Time Warner "plays no part in controlling the activities" of the lawyers,32 and that Time Warner's minor role in the case "was dictated entirely by considerations of the ultimate success of" Scholastic and Ms. Rowling.33 These assumptions, however, are demonstrably wrong (e.g., the assumption that Time Warner has no economic stake in the case), unproved, or are unwarranted inferences drawn from assertions made by the Frankfurt firm. The fact, for example, that Time Warner's house counsel have not commented on drafts of legal papers provided to them in advance of filing does not show that Time Warner "plays no part in controlling" the firm's actions. As noted earlier, it may reflect nothing more than satisfaction with the work product. And surely this record, unlike that in Commercial Union, does not justify the conclusion that Scholastic is contractually entitled to control the Stouffer litigation by virtue of an assignment to it of Time Warner's interests.
29 Wolfram Decl. ¶ 15.
Finally, even if the facts warranted the conclusion that Time Warner is an accommodation client in Stouffer in the sense that Professor Wolfram uses the term, the Court rejects his contention that the Frankfurt firm is entitled, without Time Warner's consent, to drop it "like a hot potato, or otherwise" simply because it has found a case more to its liking. Allegaert involved a different situation entirely. The law firms sought to be disqualified there from suing the bankruptcy estate of duPont Walston Incorporation ("Walston") formerly had represented both their regular clients and Walston, with whom their regular clients then were aligned in something akin to a joint venture, in a derivative suit challenging the alignment. The Circuit affirmed the district court order declining to disqualify the law firms on the ground that Walston, in view of the "joint venture" in which it was engaged with the law firms' regular clients, could not reasonably have believed that any information they gave to the lawyers in the course of the derivative suit would be withheld from the regular clients.34 The case therefore involved the question whether the lawyers were disabled from suing a former client by virtue of Canon 4's requirement that the lawyer preserve client confidences. The Circuit held only that Canon 4 is not implicated where there could have been no confidences to begin with. But that is a far cry from saying that a lawyer in an existing relationship simply may fire a client for the lawyer's own advantage, a matter that implicates Canon 5's requirement of the lawyer's obligation of utmost fidelity to the client. Thus, the Court concludes that the Frankfurt firm is acting improperly in seeking to represent defendants here despite its representation of Time Warner in Stouffer. That, however, does not necessarily mean that it should be disqualified.
35 Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 (2d Cir. 1981); see also Evans v. Artek Systems Corp., 715 F.2d 788 (2d Cir. 1983).
36 See, e.g., Board of Ed. of the City of New York v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979).
37 Garbus Decl. ¶¶ 17-19.
The view that the motion is tactically motivated, at least in part, draws support from the fact that Time Warner has made no effort to show that its interests either in this case or in Stouffer would be affected adversely by the Frankfurt firm's conflict. There is no suggestion that the Frankfurt firm is privy to any Time Warner secrets by virtue of the Stouffer representation that could be used to its disadvantage here. There is no suggestion that the firm's representation of Time Warner in Stouffer would suffer, which seems unlikely in view of the firm's long standing relationship with Scholastic and the substantial congruence of Time Warner's interests there with those of Scholastic. In short, Time Warner has failed to establish any material risk that it would be prejudiced inappropriately by allowing the Frankfurt firm to continue in this litigation notwithstanding its role in the Stouffer case. Moreover, defendants here certainly do not object to Frankfurt's representation of them notwithstanding its obligations to Time Warner in Stouffer.
The situation before the Court is troublesome. The lawyers' breach of ethics cannot reasonably be minimized. Even acknowledging that the Frankfurt firm, in consequence of sloppy conflict checking procedures, appears to have agreed to take on this case without realizing that doing so would be improper, its insistence on proceeding once it learned of the conflict was improper. In other circumstances, the Court well might disqualify it. But there are substantial factors pointing to a contrary result. There is no real risk of tainting the trial or, putting it another way, of prejudicing Time Warner absent disqualification. Disqualification at this stage would prejudice defendants in that they would be forced either to find and educate new counsel for an important trial that now is less than two months away or seek an adjournment and thus perhaps prolong the duration of the preliminary injunction. Time Warner sat on its hands for too long to have substantial claims on the Court's exercise of its discretion. Accordingly, the motion to disqualify defendants' counsel is denied. The proper place for this controversy is in the appropriate professional disciplinary body.


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Plaintiff Suresh Dabas, an employee of the United States Postal Service (“USPS”), filed this action against Megan J. Brennan in her official capacity as Postmaster General of USPS. He alleges discrimination on the basis of race and national origin in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and retaliation in violation of both Title VII and the Americans with Disabilities Act of 1990 (“ADA”). The defendant has moved to dismiss Mr. Dabas's complaint or, in the alternative, for summary judgment. The issues in this case have been fully briefed, and no hearing is necessary. See Local R. 105.6. For the reasons stated below, the motion will be granted.
The defendant seeks to dismiss Mr. Dabas's ADA claim for lack of subject matter jurisdiction because he allegedly failed to exhaust administrative remedies. Under the ADA, “a plaintiff must exhaust his administrative remedies by filing a charge with the EEOC before pursuing a suit in federal court, ” Sydnor v. Fairfax Cty., Va., 681 F.3d 591, 593 (4th Cir. 2012), and failure to exhaust administrative remedies on an ADA claim deprives this court of subject matter jurisdiction over that claim, see Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300-01 (4th Cir. 2009). “A plaintiff's EEOC charge defines the scope of her subsequent right to institute a civil suit.” Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000); see also Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996). “In determining what claims a plaintiff properly alleged before the EEOC, we may look only to the charge filed with that agency, ” but those claims “must be construed with utmost liberality.” Balas v. Huntington Ingalls Industries, Inc., 711 F.3d 401, 408 (4th Cir. 2013) (quoting Alvarado v. Bd. Of Trs. Of Montgomery Cmty. Coll., 848 F.2d 457, 460 (4th Cir. 1988)). The scope of a plaintiff's complaint is limited to those claims that are “reasonably related” to the EEOC charge and that could be expected to follow from a “reasonable administrative investigation.” Smith, 202 F.3d at 247-48.
Mr. Dabas moved to add an ADA discrimination claim to his race and national origin discrimination claims before the EEOC. The Administrative Judge denied this motion, so the merits of Mr. Dabas's ADA discrimination claim were not ruled on at the administrative stage. In his complaint, he filed a count of retaliation under the ADA, not the discrimination claim he sought to add to the EEOC complaint. The race and national origin complaints arose from the same hedge trimming incidents that are central to the ADA retaliation claim. These incidents necessitated investigation into Mr. Dabas's medical restrictions at the time of these incidents; indeed, his medical status and related restrictions and accommodations are inextricably tied to his claims of race and national origin discrimination. Additionally, the EEOC did investigate his claim of retaliation under Title VII, which is legally similar to such a claim made under the ADA. The ADA retaliation claim brought in litigation is reasonably related to those investigated by the EEOC, such that the central facts could, and likely were, adequately investigated by the responsible agency. See Smith, 202 F.3d at 247-48; Evans, 80 F.3d at 963. As the EEOC investigation was sufficient regarding this ADA claim, the court finds it has subject matter jurisdiction over that claim, though it will be denied for the reasons that follow.

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PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CARLOS MENEQUE y MONTON, Accused-Appellant.
That on or about the 6th day of March 1991, in the Municipality of Don Salvador Benedicto, Province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with M-14 rifle, with evident premeditation and treachery, with intent to kill, did then and there, wilfully, unlawfully and feloniously attack, assault and shoot one MARIO AGUILAR y BAVIERA, thereby inflicting upon him multiple injuries which caused his death.
That on or about the 6th day of March 1991, in the Municipality of Don Salvador Benedicto, Province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with M-14 rifle, with evident premeditation and treachery, with intent to kill, did then and there, wilfully, unlawfully and feloniously attack, assault and shoot one RICARDO CABARANG y ORTIZ, thereby inflicting upon him "Gunshot wounds" which caused his death.
Upon arraignment, Accused pleaded not guilty to the two counts of murder. Thus, trial ensued.
John Dulaca’s testimony was substantially corroborated by Johnny Alimon and Ernesto Gonzales.
We cannot give credence to accused-appellant’s version of events. Apart from his own self-serving statements, Accused-appellant’s testimony is uncorroborated by independent and competent evidence. 38 We agree with the trial court that the testimony of Rogelio de Jose, the only other witness for the defense, was weak and untenable. On direct examination, de Jose claimed that he witnessed the fighting between accused-appellant and some men inside the store which accused-appellant had entered. However, on cross-examination, de Jose admitted that he could not see inside the store. 39 De Jose’s contradictory statements impair his credibility.
Moreover, Accused-appellant’s testimony is intrinsically doubtful. He claims that he was assaulted by the group of Aguilar whose members were supposedly armed. However, despite their alleged superiority in strength and number, Accused-appellant, surprisingly, did not sustain any wounds; no member of Aguilar’s group had used their firearms against Accused-Appellant. Rather, it was Cabarang and Aguilar who ended up getting killed by, if the version of accused-appellant is to be believed, the haphazard firing by accused-appellant of his M-14 rifle as he was running away from Noel Benedicto’s house. It is well-settled that the nature and number of wounds inflicted by the accused are considered important indicia which disprove a plea of self-defense. 40 Given the circumstance obtaining in the present case, it is difficult, if not impossible to conclude that accused-appellant was the unwitting and defenseless victim of a murderous aggression by the group of Aguilar.
It is firmly established doctrine that absent any showing that it has overlooked, misapprehended, or misapplied some facts of weight and substance which, if properly considered, would have altered the result of the case, the trial court’s assessment of the credibility of the witnesses must be sustained by the appellate court. 41 Since the trial court had the distinct opportunity of directly observing the demeanor of the witness, it is therefore in a better position to ascertain whether or not he or she is telling the truth. 42 Based on our own critical study of the records of this case, we find that the trial court was justified in upholding the testimony of the prosecution witnesses as being worthy of full faith and credence. The defense has not proven that the prosecution witnesses were moved by improper motives, thus, it must be presumed that they were not so moved. 43 On the contrary, we find that the testimonies of the prosecution witnesses were clear and straightforward and coincided on all material points.
WHEREFORE, the January 29, 1997 Decision of Branch 44 of the Regional Trial Court of Negros Occidental is hereby AFFIRMED. Costs against Accused-Appellant.
2.	TSN, October 3, 1995, 4-5.
4.	Dulaca identified accused-appellant in court. Ibid., 26-27.
12.	Alimon identified accused-appellant in court. TSN, November 14, 1995, 9-10.
18.	Gonzales identified accused-appellant in court. Gonzales knew accused-appellant because he was their supervisor in the CAFGU. TSN, October 3, 1995, 50-52.
22.	TSN, October 14, 1996, 4-5.
26.	TSN, December 9, 1996, 4-5.
33.	People v. De la Cruz, 291 SCRA 164 (1998); People v. Timblor, 285 SCRA 64 (1998).
34.	People v. Peña, 291 SCRA 606 (1998); People v. Mendoza, 284 SCRA 705 (1998).
35.	People v. Cario, 288 SCRA 404 (1998); People v. Timblor, supra.
36.	People v. Noay, 296 SCRA 292 (1998).
38.	People v. De la Cruz, supra.
39.	TSN, December 9, 1996, 5-7, 12-13.
40.	People v. Umadhay, 293 SCRA 545 (1998); People v. Cañete, 287 SCRA 490 (1998).
41.	People v. Atop, 286 SCRA 157 (1998); People v. Viovicente, 286 SCRA 1 (1998).
42.	People v. Albao, 287 SCRA 129 (1998); People v. Obello, 284 SCRA 79 (1998).
43.	People v. Mendoza, supra.
44.	People v. Gungon, 287 SCRA 618 (1998).
45.	People v. Cortes, 286 SCRA 295 (1998).
46.	People v. Sumalpong, 284 SCRA 464 (1998).
47.	People v. Toling, 62 SCRA 17 (1975), citing People v. Salazar, 105 Phil. 1058 (1959); People v. Mortero, 108 Phil. 31 (1960); People v. Remollino, 109 Phil. 607 (1960).
48.	Revised Penal Code, art. 64.
49.	People v. Solis, 291 SCRA 529 (1998).
50.	People v. Oliano, 287 SCRA 158 (1998).

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§ 535-1 Definitions; word usage.
§ 535-2 Manner of adopting permanent traffic and parking regulations.
§ 535-3 Temporary and emergency regulations.
§ 535-6 Use of sidewalks by motor vehicles.
§ 535-7 Speed limits established.
§ 535-8 Electronic, electrical and mechanical speed-timing devices.
§ 535-9 One-way highways established.
§ 535-10 Two-way traffic permitted.
§ 535-12 Turns at intersections.
§ 535-13 Center structures at intersections.
§ 535-17 Yield right-of-way intersections.
§ 535-19 Closing of certain highways to certain vehicles.
§ 535-20 Streets with vehicle weight limits established; Highway 143 bridge weight limits; truck traffic restricted.
§ 535-21 Operation of vehicles on closed highways.
§ 535-24 Parking without lights authorized.
§ 535-25 Vehicles to be parked within marked spaces.
§ 535-27 Parking prohibited at all times.
§ 535-28 Trailer parking prohibited at all times.
§ 535-29 Parking prohibited during certain hours.
§ 535-30 Parking time limited.
§ 535-31 Special purpose parking zones.
§ 535-32 Handicapped parking; fire lanes.
§ 535-33.1 Parking of commercial motor vehicles, large vehicles and equipment.
§ 535-34 Designation of parking spaces.
§ 535-35 Installation of meters; operation.
§ 535-36 Manner of parking.
§ 535-37 Deposit of coins.
§ 535-39 Report of violations; citations.
§ 535-40 Collection of coins from meters.
§ 535-42 Parking meter zones established.
§ 535-43 Parking meter rates.
§ 535-44 Declaration of emergency.
§ 535-45 Parking prohibited on certain streets.
§ 535-46 Placement of signs.
§ 535-48 Authorization for removal and impoundment.
§ 535-49 Approved storage garages designated.
§ 535-50 Bonding of garages.
§ 535-51 Towing and storage charges.
§ 535-52 Notification of removal and impounding.
§ 535-53 Payment of charges; protests.
§ 535-54 Records of vehicles removed and impounded.
§ 535-55 Liability of owner or operator for fine or penalty.
§ 535-56 Restrictions upon removal of vehicles.
§ 535-57 Repeal of previous ordinances; effect.
§ 535-58 Violations and penalties.
§ 535-59 Use on public streets and sidewalks prohibited.
§ 535-60 Violations and penalties.
Smoking prohibited on buses — See Ch. 458, Art. I.
Abandoned vehicles — See Ch. 528.


“The legislature shall establish, organize, and maintain a liberal system of public schools throughout the state for the benefit of the children thereof between the ages of seven and twenty-one years…Separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race.” Ala. Const., art. XIV, § 256.
“No money raised for the support of the public schools shall be appropriated to or used for the support of any sectarian or denominational school.” Ala. Const., art. XIV, § 263.
In 1956, in response to Brown v. Board of Education, Alabama amended its constitution to state that “nothing in this Constitution should be construed as creating or recognizing” the right to an education. The trial court, in Alabama Coalition for Equity (ACE) v. Hunt, below, declared that this amendment violated the federal constitution and was, therefore, void. However, since the Alabama Supreme Court did not review that holding, the 1956 amendment remained. In 2004, Alabama voters defeated a proposed amendment to remove this and all language regarding segregation from State constitutional clauses.
In 1997, in ACE v. Hunt, the Alabama Supreme Court affirmed a trial court ruling that the State school funding system violated the constitution because it did not provide “equitable and adequate educational opportunities” for all students. The Court also held that the Legislature needed “a reasonable time” to enact a remedy. The State revised its funding system and improved facilities across the State.
In 2002, shortly before a hearing on whether the State had remedied the violation after “a reasonable time,” the Alabama Supreme Court, on its own initiative and long after its jurisdiction in the case had ended, dismissed this case in its entirety. The composition of this elected Court had changed in the intervening years.
In 2008, in Lynch v. State, plaintiffs filed a different type of school funding and educational opportunity lawsuit in federal District Court, seeking a declaratory judgment that the State constitution’s property tax restrictions, which allegedly limited education funding severely for African-American and other rural children, violated the U.S. Constitution’s 14th amendment and the federal Civil Rights Act. In 2011, the District Court acknowledged that the challenged property tax restrictions substantially harmed minority groups but concluded that they did not violate the U.S. Constitution or the Civil Rights Act. The U.S. Circuit Court of Appeals affirmed, and in 2014, the U.S. Supreme Court denied review.


Section 1. Amend Section 1 of 58 Delaware Laws, Chapter 497, by deleting in §222 (5) thereof the ")" after the words "pocket knife" and inserting a ")" after the word "position" and before the ",".
Section 2. Amend Section 1 of 58 Delaware Laws, Chapter 497, by deleting the word "exclusive" as it appears in §306 (3) (b) thereof.
Section 3. Amend Section 1 of 58 Delaware Laws, Chapter 497, by adding in §404 (1) thereof a "," after the words "after hearing.".
Section 5. Amend Section 1 of 58 Delaware Laws, Chapter 497, by inserting in §464 (5) (a) thereof a "," after the word "injury".
Section 6. Amend Section 1 of 58 Delaware Laws, Chapter 497, by deleting the period after the word "thereof" as the same appears in §467 (3) (a) thereof and inserting in lieu thereof a " ; and".
Section 7. Amend Section 1 of 58 Laws of Delaware, Chapter 497, by placing the words "and he or another person with whom he conspired commits an overt act in pursuance of the conspiracy." as the same appear in §511, §512, and §513 thereof on the next line following the last line of each of the subsection (2) s in the aforesaid sections.
Section 8. Amend Section 1 of 58 Laws of Delaware, Chapter 497, by deleting in §632 (3) thereof the word "disturbance" and inserting in lieu thereof the word "distress".
Section 9. Amend Section 1 of 58 Laws of Delaware, Chapter 497, by deleting in §652 thereof the words "abortion upon herself" and inserting in lieu thereof the words "miscarriage upon herself".
Section 10. Amend Section 1 of 58 Laws of Delaware, Chapter 497, by deleting in §521 (1) thereof the words "of continuous" and inserting in lieu thereof the words "or continuous".
Section 11. Amend Section 1 of 58 Laws of Delaware, Chapter 497, by deleting in §513 (2) thereof the "," as the same appears after the word "felony" and inserting in lieu thereof a ";".
Section 12. Amend Section 1 of 58 Laws of Delaware, Chapter 497, by adding in the second sentence of §475 thereof the words "now charged would have been barred by prosecution for the offense" after the words "the offense" and before the words "as to which".
Section 13. Amend Section 1 of 68 Laws of Delaware, Chapter 497, by deleting in §881 thereof the word "Bribery" as the same appears in the catchline thereof and by inserting in lieu thereof the word "Bribing".
Section 14. Amend Section 1 of 58 Laws of Delaware, Chapter 497, by adding in §840 (c) thereof an "s" to the word "premise", making it plural.
Section 16. Amend Section 1 of 58 Delaware Laws, Chapter 497, by deleting the word "Bribery" from the title of Subpart G thereof, and inserting in lieu thereof the word "Bribing".
Section 16. Amend Section 1 of 58 Delaware Laws, Chapter 497, by deleting in §900 (1) thereof the word "not" and inserting in lieu thereof the word "no".
Section 17. Amend Section 1 of 58 Delaware Laws, Chapter 497, by deleting in §906 (2) thereof the word "commidity" and inserting in lieu thereof the word "commodity".
Section 18. Amend Section 1 of 58 Delaware Laws, Chapter 497, by deleting in §907 (1) thereof the word "of" and inserting in lieu thereof the word "or".
Section 19. Amend Section 1 of 58 Delaware Laws, Chapter 497, by deleting in §1273 thereof the letters "cler", and inserting in lieu thereof the word "clerk".
Section 20. Amend Section 1 of 58 Delaware Laws, Chapter 497, by deleting in §1311 (1) thereof the letters "insutls" and inserting in lieu thereof the word "insults".
Section 21. Amend Section 1 of 58 Delaware Laws, Chapter 497, by deleting in §850 (2) the words "place or" and inserting in lieu thereof the words "place of".
Section 22. Amend Section 1 of 58 Delaware Laws, Chapter 497, by deleting in the catchline of §862 thereof the word "devises" in the title thereof and inserting in lieu thereof the word "devices".
"(d) Obstructing vehicular or pedestrian traffic; or".
Section 24. Amend Section 1 of 58 Delaware Laws, Chapter 497, by deleting in §1301 (e) thereof the words "he congregates" and inserting in lieu thereof the word "Congregating" and by deleting the word "refuses" and by inserting in lieu thereof the word "refusing".
Section 25. Amend Section 1 of 58 Delaware Laws, Chapter 497, by deleting in §1337 (1) a comma after the words "access and".
Section 26. Amend Section 1 of 58 Delaware Laws, Chapter 497, by deleting in §1425 the word "probable" and inserting in lieu thereof the word "reasonable".
Section 27. Amend Section 1 of 58 Delaware Laws, Chapter 497, by striking in §852 thereof the words "is a dealer in property of the sort received and".
Section 28. Amend Section 1 of 58 Delaware Laws, Chapter 497, by adding to §1336 (c) (1) thereof a new sentence to read as follows: "It shall not be unlawful under this section for an officer, employee or agent of any communication common carrier to provide information, facilities, or technical assistance to an investigative or law enforcement officer who, pursuant to this section, is authorized, by the Superior Court, to intercept a wire or oral communication.".
"An order authorizing the interception of a wire or oral communication shall, upon request of the applicant, direct that a communication common carrier, landlord, custodian or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with minimum of interference with the services that such carrier, landlord, custodian or other person furnishing such facilities or technical assistance shall be compensated therefor by the applicant at the prevailing rates."
Section 30. Amend Section 1 of 58 Delaware Laws, Chapter 497, by adding in §1336 (g) thereof after the words "stimulant drugs" as the same appear therein the following new words, "controlled substances or counterfeit controlled substances,".
Section 31. Amend Section 1 of 58 Delaware Laws, Chapter 497, by deleting in §1425 thereof the words "probable cause" and inserting in lieu thereof the words "reasonable cause".
Section 32. Amend Section 2 of 58 Delaware Laws, Chapter 497, by striking in §4205 (1) and (2) thereof the word "maximum" as it appears therein.
(27) §1335 (violation of privacy).
"(b) Notwithstanding the provisions of §4205 of this title, the minimum sentence for a violation of this section shall be not less than five (5) years which minimum sentence shall not be subject to suspension and no person convicted for a violation of this section shall be eligible for parole or probation during such five years."
"(2) In the course of and in furtherance of the commission or attempted commission of any felony not specifically enumerated in §636 of this Title or immediate flight therefrom, he with criminal negligence, causes the death of another person."
Section 36. Amend Section 1 of 58 Delaware Laws, Chapter 497, by striking §407 thereof in its entirety.
"(1) Except as provided in subsection (2) of this section, voluntary intoxication is an affirmative defense in a prosecution for a criminal offense only if it negatives the element of intentional or intentionally."
"(1) In any prosecution for an offense, it is an affirmative defense that the accused engaged in the proscribed conduct because he was induced by a law enforcement official or his agent who is acting in the knowing cooperation with such an official to engage in the proscribed conduct constituting such conduct which is a crime when such person is not otherwise disposed to do so. The defense of entrapment as defined by this Code concedes the commission of the act charged but claims that it should not be punished because of the wrong-doing of the officer originates the idea of the crime and then induces the other person to engage in conduct constituting such a crime when the other person is not otherwise disposed to do so."
Section 39. This Act shall become effective on July 1, 1973 simultaneously with the taking of effect of 58 Delaware Laws, Chapter 497.


§ 501.703 Overview of civil penalty process and construction of rules.
§ 501.704 Appearance and practice.
§ 501.705 Service and filing.
§ 501.706 Prepenalty Notice; issuance by Director.
§ 501.707 Response to Prepenalty Notice.
§ 501.708 Director's finding of no penalty warranted.
§ 501.712 Acknowledgment of hearing request.
§ 501.713 Order Instituting Proceedings.
§ 501.714 Answer to Order Instituting Proceedings.
§ 501.715 Notice of Hearing.
§ 501.717 Consolidation of proceedings.
§ 501.718 Conduct and order of hearings.
§ 501.719 Ex parte communications.
§ 501.720 Separation of functions.
§ 501.721 Hearings to be public.
§ 501.723 Prehearing disclosures; methods to discover additional matter.
§ 501.724 Documents that may be withheld.
§ 501.725 Confidential treatment of information in certain filings.
§ 501.727 Motion for summary disposition.
§ 501.730 Depositions upon oral examination.
§ 501.731 Depositions upon written questions.
§ 501.733 Evidence: confidential information, protective orders.
§ 501.734 Introducing prior sworn statements of witnesses into the record.
§ 501.735 Proposed findings, conclusions and supporting briefs.
§ 501.736 Authority of Administrative Law Judge.
§ 501.737 Adjustments of time, postponements and adjournments.
§ 501.738 Disqualification and withdrawal of Administrative Law Judge.
§ 501.739 Record in proceedings before Administrative Law Judge; retention of documents; copies.
§ 501.740 Decision of Administrative Law Judge.
§ 501.741 Review of decision or ruling.
§ 501.742 Secretary's designee's consideration of decisions by Administrative Law Judges.
§ 501.743 Briefs filed with the Secretary's designee.
§ 501.744 Record before the Secretary's designee.
§ 501.745 Orders and decisions: signature, date and public availability.
§ 501.746 Referral to United States Department of Justice; administrative collection measures.
§ 501.747 Procedures on remand of decisions.
68 FR 53642, Sept. 11, 2003, unless otherwise noted.