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EASLEY, D.; KLEINBERG, J. (2010). Networks, Crowds, and Markets: Reasoning About a Highly Connected World. Cambridge University Press.
TODEVA, E. (2006). Business networks: strategy and structure. Routledge.
WATSON, M. et al (2012). Supply Chain Network Design: Applying Optimization and Analytics to the Global Supply Chain. New Jersey: Pearson FT Press.
NOHRIA, N.; ECCLES, R. Networks and Organizations: Structure, Form and Action. Boston: Harvard Business School, 1992.
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BELLAMY, M.; GHOSH, S.; HORA, M. The influence of supply network structure on firm innovation. Journal of Operations Management, v. 32, n. 6, p. 357–373, 2014.
* CARTER, C. R.; ROGERS, D. S.; CHOI, T. Y. Toward the theory of the supply chain. Journal of Supply Chain Management, v. 51, n. 2, p. 89–97, 2015.
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* PILBEAM, C.; ALVAREZ, G.; WILSON, H. The governance of supply networks: a systematic literature review. Supply Chain Management: An International Journal, v. 17, n. 4, p. 358–376, 2012.
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The instant Motion for Sanctions stems from a dispute between Debtor and Creditor regarding Creditor’s ability to seek equitable contribution on post-petition payments he made on a non-discharged student loan which he co-signed and is jointly liable upon. This Court entered an opinion and held that Creditor had a right to equitable contribution on these post-petition payments and was not barred by the discharge injunction from recovering those payments from Debtor.
Debtor then filed a Motion to Alter or Amend, disputing the Court’s reasoning, particularly its reliance on State law declaring that sureties are entitled to equitable contribution. On April 3, 2018, this Court issued an opinion denying Debtor’s Motion to Alter or Amend, explaining that as parties who are jointly liable on the loan, Creditor and Debtor are sureties and Creditor is entitled to equitable contribution. The Court further explained that Creditor is only entitled to contribution after he makes payments on the loan which cover Debtor’s share, and that because these payments are being made post-petition, his right to equitable contribution on these specific payments arose post-petition and were not discharged.
On February 27, 2018, Creditor filed the instant Motion for Sanctions. Creditor argues that Debtor’s Motion to Alter or Amend put forth largely the same arguments that the Court found unpersuasive in her Motion to Reopen and Impose Sanctions. Creditor requested that Debtor withdraw the motion on February 2, 2018, or he would pursue sanctions. Debtor refused to do so in the 21-day window provided by Creditor, and he followed through on his threat to file the instant Motion. Creditor argues that Debtor’s conduct is sanctionable under two separate provisions.
First, Creditor asserts that Debtor’s conduct is sanctionable pursuant to Fed. R. Bankr. P. 9011, which incorporates Fed. R. Civ. P. 11. In relevant part, that provision states that by submitting a pleading, a party certifies to the best of its, “knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” that its pleadings are not presented to unduly delay or harass an opposing party, that the claims have legally sufficient basis, and that the factual allegations have factual support. FED. R. BANKR. P. 9011; FED. R. CIV. P. 11. Rule 11 sanctions are typically imposed on parties who file documents with the court for some improper purpose. Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 393 (1990) (“It is now clear that the central purpose of Rule 11 is to deter baseless filings in District Court and thus . . . streamline the administration and procedure of the federal courts.”). Such sanctions are often imposed when a party files frivolous or legally unreasonable documents with the court. Fries v. Helsper, 146 F.3d 452, 458 (7th Cir. 1998). A suit is frivolous if the probability of the suit’s success is very low. Maxwell v. KPMG LLP, 520 F.3d 713, 719 (7th Cir. 2008). The Rule imposes an affirmative duty of reasonable investigation upon the attorney who signs the pleading. Fred A. Smith Lumber Co. v. Eddin, 845 F.2d 750, 751 (7th Cir. 1988). Creditor seeks payment of his reasonable attorney’s fees and other expenses incurred due to the Motion to Alter or Amend.
Second, Creditor argues that sanctions against Debtor are warranted pursuant to 28 U.S.C. § 1927. That provision provides, in relevant part, that any attorney, “who so multiples the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 11 U.S.C. § 1927. Conduct is sanctionable under § 1927 in cases where attorneys act egregiously in disregarding, “the orderly process of justice,” including where an attorney “pursued a claim that is without plausible legal or factual basis and lacking in justification . . . or pursue[d] a path that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound.” Jolly Group, Ltd. v. Medline Indus. Inc., 435 F.3d 717, 720 (7th Cir. 2006) (internal citations omitted). Creditor seeks payment of his reasonable attorney’s fees and other expenses incurred due to the Motion to Alter or Amend.


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…since Everson our Establishment Clause cases have been neither principled nor unified. Our recent opinions, many of them hopelessly divided pluralities, have with embarrassing candor conceded that the “wall of separation” is merely a “blurred, indistinct, and variable barrier,” which “is not wholly accurate” and can only be “dimly perceived.” Lemon v. Kurtzman, 403 U.S. 602… (1971); Tilton v. Richardson, 403 U.S. 672… (1971); Wolman v. Walter, 433 U.S. 229 (1977); Lynch v. Donnelly, 465 U.S. 668… (1984).
Whether due to its lack of historical support or its practical unworkability, the Everson “wall” has proved all but useless as a guide to sound constitutional adjudication. It illustrates only too well the wisdom of Benjamin Cardozo’s observation that “metaphors in law are to be narrowly watched, for starting as devices to liberate thought; they end often by enslaving it.” Berkey v. Third Avenue R. Co., 244 N.Y. 84… (1926).
But the greatest injury of the “wall” notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights. The “crucible of litigation,” ante, at 2487, is well adapted to adjudicating factual disputes on the basis of testimony presented in court, but no amount of repetition of historical errors in judicial opinions can make the errors true. The “wall of separation between church and State” is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.
The Court has more recently attempted to add some mortar to Everson‘s wall through the three-part test of Lemon v. Kurtzman, supra, 403 U.S., at 614-615, 91 S.Ct., at 2112, which served at first to offer a more useful test for purposes of the Establishment Clause than did the “wall” metaphor. Generally stated, the Lemon test proscribes state action that has a sectarian purpose or effect, or causes an impermissible governmental entanglement with religion.
Lemon cited Board of Education v. Allen, 392 U.S. 236… (1968), as the source of the “purpose” and “effect” prongs of the three-part test. The Allen opinion explains, however, how it inherited the purpose and effect elements from Schempp and Everson, both of which contain the historical errors described above. See Allen, supra, at 243, 88 S.Ct., at 1926. Thus the purpose and effect prongs have the same historical deficiencies as the wall concept itself: they are in no way based on either the language or intent of the drafters.
However, if the purpose prong is aimed to void all statutes enacted with the intent to aid sectarian institutions, whether stated or not, then most statutes providing any aid, such as textbooks or bus rides for sectarian school children, will fail because one of the purposes behind every statute, whether stated or not, is to aid the target of its largesse. In other words, if the purpose prong requires an absence of any intent to aid sectarian institutions, whether or not expressed, few state laws in this area could pass the test, and we would be required to void some state aids to religion which we have already upheld. E.g., Allen, supra.
We have not always followed Walz‘s reflective inquiry into entanglement, however. E.g., Wolman, supra, 433 U.S., at 254, 97 S.Ct., at 2608. One of the difficulties with the entanglement prong is that, when divorced from the logic of Walz, it creates an “insoluable paradox” in school aid cases: we have required aid to parochial schools to be closely watched lest it be put to sectarian use, yet this close supervision itself will create an entanglement. Roemer v. Maryland Bd. of Public Works, 426 U.S. 736… (1976) (WHITE, J., concurring in judgment). For example, in Wolman, supra, the Court in part struck the State’s nondiscriminatory provision of buses for parochial school field trips, because the state supervision of sectarian officials in charge of field trips would be too onerous. This type of self-defeating result is certainly not required to ensure that States do not establish religions.
For example, a State may lend to parochial school children geography textbooks(7)that contain maps of the United States, but the State may not lend maps of the United States for use in geography class.(8) A State may lend textbooks on American colonial history, but it may not lend a film on George Washington, or a film projector to show it in history class. A State may lend classroom workbooks, but may not lend workbooks in which the parochial school children write, thus rendering them nonreusable.(9) A State may pay for bus transportation to religious schools(10)but may not pay for bus transportation from the parochial school to the public zoo or natural history museum for a field trip.(11) A State may pay for diagnostic services conducted in the parochial school but therapeutic services must be given in a different building; speech and hearing “services” conducted by the State inside the sectarian school are forbidden, Meek v. Pittenger, 421 U.S. 349, 367, 371, 95 S.Ct. 1753, 1764, 1766, 49 L.Ed.2d 179 (1975), but the State may conduct speech and hearing diagnostic testing inside the sectarian school. Wolman, 433 U.S., at 241, 97 S.Ct., at 2602. Exceptional parochial school students may receive counseling, but it must take place outside of the parochial school,(12)such as in a trailer parked down the street. Id., at 245, 97 S.Ct., at 2604. A State may give cash to a parochial school to pay for the administration of state-written tests and state-ordered reporting services,(13)but it may not provide funds for teacher-prepared tests on secular subjects.(14) Religious instruction may not be given in public school,(15)but the public school may release students during the day for religion classes elsewhere, and may enforce attendance at those classes with its truancy laws.
These results violate the historically sound principle “that the Establishment Clause does not forbid governments . . . to [provide] general welfare under which benefits are distributed to private individuals, even though many of those individuals may elect to use those benefits in ways that ‘aid’ religious instruction or worship.” Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 799, 93 S.Ct. 2955, 2989, 37 L.Ed.2d 948 (1973) (BURGER, C.J., concurring in part and dissenting in part). It is not surprising in the light of this record that our most recent opinions have expressed doubt on the usefulness of the Lemon test.
Although the test initially provided helpful assistance, e.g., Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), we soon began describing the test as only a “guideline,” Committee for Public Education & Religious Liberty v. Nyquist, supra, and lately we have described it as “no more than [a] useful signpos[t].” Mueller v. Allen, 463 U.S. 388, 394, 103 S.Ct. 3062, 3066, 77 L.Ed.2d 721 (1983), citing Hunt v. McNair, 413 U.S. 734, 741, 93 S.Ct. 2868, 2873, 37 L.Ed.2d 923 (1973); Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982). We have noted that the Lemon test is “not easily applied,” Meek, supra, 421 U.S., at 358, 95 S.Ct., at 1759, and as Justice WHITE noted in Committee for Public Education v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980), under the Lemon test we have “sacrifice[d] clarity and predictability for flexibility.” 444 U.S., at 662, 100 S.Ct., at 851. In Lynch we reiterated that the Lemon test has never been binding on the Court, and we cited two cases where we had declined to apply it. 465 U.S., at 679, 104 S.Ct., at 1362, citing Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983); Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982).
If a constitutional theory has no basis in the history of the amendment it seeks to interpret, is difficult to apply and yields unprincipled results, I see little use in it. The “crucible of litigation,” ante, at 2487, has produced only consistent unpredictability, and today’s effort is just a continuation of “the sisyphean task of trying to patch together the ‘blurred, indistinct and variable barrier’ described in Lemon v. Kurtzman.” Regan, supra, 444 U.S., at 671, 100 S.Ct., at 855 (STEVENS, J., dissenting). We have done much straining since 1947, but still we admit that we can only “dimly perceive” the Everson wall. Tilton, supra. Our perception has been clouded not by the Constitution but by the mists of an unnecessary metaphor.
The true meaning of the Establishment Clause can only be seen in its history. See Walz, 397 U.S., at 671-673, 90 S.Ct., at 1412-1413; see also Lynch, supra, at 673-678, 104 S.Ct., at 1359-1362. As drafters of our Bill of Rights, the Framers inscribed the principles that control today. Any deviation from their intentions frustrates the permanence of that Charter and will only lead to the type of unprincipled decision-making that has plagued our Establishment Clause cases since Everson.
The Court strikes down the Alabama statute because the State wished to “characterize prayer as a favored practice.” Ante, at 2492. It would come as much of a shock to those who drafted the Bill of Rights as it will to a large number of thoughtful Americans today to learn that the Constitution, as construed by the majority, prohibits the Alabama Legislature from “endorsing” prayer. George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of “public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.” History must judge whether it was the Father of his Country in 1789, or a majority of the Court today, which has strayed from the meaning of the Establishment Clause.
The State surely has a secular interest in regulating the manner in which public schools are conducted. Nothing in the Establishment Clause of the First Amendment, properly understood, prohibits any such generalized “endorsement” of prayer. I would therefore reverse the judgment of the Court of Appeals.
Reynoldsis the only authority cited as direct precedent for the “wall of separation theory.” 330 U.S., at 16, 67 S.Ct., at 512. Reynolds is truly inapt; it dealt with a Mormon’s Free Exercise Clause challenge to a federal polygamy law.
In a letter he sent to Jefferson in France, Madison stated that he did not see much importance in a Bill of Rights but he planned to support it because it was “anxiously desired by others . . . [and] it might be of use, and if properly executed could not be of disservice.” 5 Writings of James Madison, 271 (G. Hunt ed. 1904).
State establishments were prevalent throughout the late 18thand early 19th centuries. See Mass. Const. of 1780, Part 1, Art. III; N. H. Const. of 1784, Art. VI; Md. Declaration of Rights of 1776, Art. XXXIII; R. I. Charter of 1633 (superseded 1842).
From 1789 to 1823 the United States Congress had provided a trust endowment of up to 12,000 acres of land “for the Society of the United Brethren, for propagating the Gospel among the Heathen.” See, e.g., ch. 46, 1 Stat. 490. The Act creating this endowment was renewed periodically and the renewals were signed into law by Washington, Adams, and Jefferson.
Tilton v. Richardson, 403 U.S. 672, 677, 91 S.Ct. 2091, 2095, 29 L.Ed.2d 790 (1971); Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975) (partial); Roemer v. Maryland Bd. of Public Works, 426 U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976); Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977).

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Chapter 8B - Interpreters for Deaf Persons.
§ 8B-1. Definitions; right to interpreter; determination of competence.
§ 8B-2. Appointment of interpreters in certain judicial, legislative, and administrative proceedings; removal.
§ 8B-3. Waiver of appointed interpreter.
§ 8B-4. Notice of need for interpreter; proof of deafness.
§ 8B-6. List of interpreters; coordination of interpreter services.
§ 8B-9. Responsibility for payment of funds to implement Chapter.
§ 8B-10. North Carolina Training and Licensing Preparation Program fees.

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1. Appellants lack standing to enjoin criminal prosecutions under Mississippi's breach-of-peace statutes, since they do not allege that they have been prosecuted or threatened with prosecution there-under; but, as passengers using the segregated transportation facilities, they have standing to enforce their rights to nonsegregated treatment. Pp. 32-33.
2. That no State may require racial segregation of interstate or intrastate transportation facilities has been so well settled that it is foreclosed as a litigable issue, and a three-judge court was not required to pass on this case under 28 U.S.C. 2281. P. 33.
3. Since this case is not one required to be heard and determined by a district court of three judges under 28 U.S.C. 2281, it cannot be brought to this Court on direct appeal under 1253; but this Court has jurisdiction to determine the authority of the Court below and to make such corrective order as may be appropriate to the enforcement of the limitation which that section imposes. P. 34.
4. The judgment is vacated and the case is remanded to the District Court for expeditions disposition, in the light of this opinion, of appellants' claims of right to nonsegregated transportation service. P. 34.
Constance Baker Motley, Jack Greenberg, James M. Nabrit III and R. Jess Brown for appellants.
Dugas Shands and Edward L. Cates, Assistant Attorneys General of Mississippi, and Charles Clark, Special Assistant Attorney General, for Patterson, Thomas H. Watkins for the City of Jackson, Mississippi, et al., and Junior O'Mara for the Greyhound Corporation et al., appellees.
Appellants, Negroes living in Jackson, Mississippi, brought this civil rights action, 28 U.S.C. 1343 (3), in the United States District Court for the Southern District of Mississippi, on behalf of themselves and others similarly situated, seeking temporary and permanent injunctions to enforce their constitutional rights to nonsegregated service in interstate and intrastate transportation, alleging that such rights had been denied them under color of state statutes, municipal ordinances, and state custom and usage. * A three-judge District Court was convened, 28 U.S.C. 2281, and, Circuit Judge Rives dissenting, abstained from further proceedings pending construction of the challenged laws by the state courts. 199 F. Supp. 595. Plaintiffs have appealed, 28 U.S.C. 1253; N. A. A. C. P. v. Bennett, 360 U.S. 471 . We denied a motion to stay the prosecution of a number of criminal cases pending disposition of this appeal. 368 U.S. 346 .
Appellants lack standing to enjoin criminal prosecutions under Mississippi's breach-of-peace statutes, since they do not allege that they have been prosecuted or threatened with prosecution under them. They cannot [369 U.S. 31, 33] represent a class of whom they are not a part. McCabe v. Atchison, T. & S. F. R. Co., 235 U.S. 151, 162 -163. But as passengers using the segregated transportation facilities they are aggrieved parties and have standing to enforce their rights to nonsegregated treatment. Mitchell v. United States, 313 U.S. 80, 93 ; Evers v. Dwyer, 358 U.S. 202 .
This case is therefore not one "required . . . to be heard and determined by a district court of three judges," 28 U.S.C. 1253, and therefore cannot be brought here on direct appeal. However, we have jurisdiction to determine the authority of the court below and "to make such corrective order as may be appropriate to the enforcement of the limitations which that section imposes," Gully v. Interstate Natural Gas Co., 292 U.S. 16, 18 ; Oklahoma Gas & Elec. Co. v. Oklahoma Packing Co., 292 U.S. 386, 392 ; Phillips v. United States, 312 U.S. 246, 254 . Accordingly, we vacate the judgment and remand the case to the District Court for expeditious disposition, in light of this opinion, of the appellants' claims of right to unsegregated transportation service.

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“Spoliation” typically refers to the “intentional destruction, mutilation, alteration or concealment of evidence,”(1) and it has become a growing issue in civil litigation. Many state and federal courts have expanded the scope of spoliation liability. Although initially identified as the intentional destruction of evidence, spoliation now includes negligent and unintentional destruction of evidence.
A wide range of negligent and/or innocent acts can result in the unwanted spoliation of evidence. And while the effect of spoliated evidence is inherently speculative, one court noted that “when attempting to determine the effect of missing evidence, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed.”(2) For this reason, the burden most often falls on the off ended party to prove that the spoliated evidence was relevant to substantiating its claim if the evidence had not been destroyed.
Once the off ended party has sufficiently demonstrated spoliation, courts respond with many types of punishment against the spoliator. Traditional judicial actions have included monetary sanctions, dismissal, issue preclusion, default judgment, criminal penalties, and in some state courts, recognition of spoliation as an independent tort. However, the use of such judicial actions varies widely, often having to do with diff erent requirements about the preservation of evidence. Although nearly all courts agree that the duty automatically emerges when a party serves or is served with a judicial or administrative complaint, for example, when a party has actual knowledge that litigation has begun, many courts have held that the duty to preserve evidence emerges as soon as it is “reasonably foreseeable” that a lawsuit will ensue and that the relevant evidence will be discoverable in connection with that lawsuit.
This legal standard raises the stakes for all property owners as well as builders, contractors and architects involved in or likely to be involved in litigation. It has always been the legal rule that a party that misplaces or destroys relevant evidence faces the possibility that a court will instruct a jury to “draw the strongest possible inference” against the party that cannot produce its evidence in court.
Moreover, today's increasing use of digital records and computer data has raised a new set of questions and concerns around the duty to preserve digital evidence. Consequently, those in possession of evidence, either digital or analog, that might be relevant to litigation must be extremely careful to preserve any such evidence at the outset or else risk potential spoliation liability.
Unlike other states like California, New York courts do not take the spoliator's motive into account when determining what punishment to apply. (5) By disregarding whether the spoliation was intentional or non-intentional, New York's approach has blurred the common-law distinction between active destruction and the simple failure to preserve evidence. Instead, the New York approach is to ask only whether a particular punishment is fair to the injured party and not disproportionately prejudicial to the spoliating party. As a result, the court can apply harsh sanctions with relative impunity, even for inadvertent, negligent spoliations of evidence.
For example, in Kirkland v. New York City Housing Authority, the court held that the housing authority's destruction of a stove required dismissal of its complaint against the stove's installer as a spoliation sanction, regardless of whether destruction was intentional or negligent. (6) For the most part, however, documents and other potentially relevant evidence is only subject to preservation when litigation is pending or anticipated.
There are some preventative steps that can help lessen the risks and challenges associated with the frequently negligent spoliation of evidence.
MAINTAIN A FORMAL, ACCURATE PROJECT SCHEDULE Owners, builders and contractors can benefit by maintaining both a formalized and accurate project schedule, keeping timely and organized records of project progress and activities as they occur. Along these lines, another preventative measure includes having all of the project staff keep individual records of daily events throughout the building process. This might mean creating a “uniform” set of guidelines and procedures that articulate the necessary process for preserving documents and identifying the situations when a document may be safely discarded. For architects, it is prudent to keep records of original or “as built” drawings.
KEEP RECORDS OF ALL PROJECT CONTRACTS AND DOCUMENTS For both architects and builders, it is important to keep well-established and accurate records of any and all contracts related to a project. Similarly, all correspondence, including written notes of meetings and discussions, should be kept on file, as they might later be helpful in proving good faith and eff orts aimed at reasonable steps to preserve evidence. Courts tend to look more favorably on parties who have made an explicit effort to preserve records and document information. Keeping a physical copy of every record, document, correspondence or drawing on file can take up a considerable amount of space, presenting excessive cost burdens for even the largest businesses. For this reason, workers and companies of all sizes have gone digital when it comes to retaining large quantities of information. In 2002, it was estimated that more than 93 percent of all business documents were created in digital form, (9) and the number keeps growing. As such, special care and attention should especially be given to digital records due to the burgeoning burden of electronic discovery.
Some discoverable information can be in unanticipated locations such as telephones, PDAs, scanners, printers, jump drives, mobile phones and content from discontinued Web sites. Sometimes, information is invisible to the average user; such “invisible” information may (10) include documents that contain metadata recording details of users, their comments, and any changes they make. Therefore, after the duty to preserve certain electronic files and/or data arises in light of pending litigation, it is important to be very cautious so that data is not unintentionally lost or subject to change. Keep in mind: merely accessing an electronic file has the potential to destroy and override discoverable metadata and digital information. If in doubt, the best advice for avoiding the risks of electronic spoliation is to consult a lawyer who has a well-founded understanding of electronic discovery and the specific issues it raises.
Perhaps the most important thing to remember when evaluating any document retention or destruction policy is whether a judge and/or jury will consider such policies as “reasonable” in the context of pending or ongoing litigation. As previously stated, “a party is not obligated to retain every document or tangible item that is in its possession, or subject to its control, after a complaint has been filed.” However, exercising preventative steps geared towards curbing the possibility of negligent spoliation cannot and should not be underestimated.
Mr. Moverman is a founding attorney of Lipsig, Shapey, Manus & Moverman, P.C. He specializes in products liability, including cases arising from defective machinery, tools, autos, occupant protection and injury from toxic substances, chemicals and medication in New York state and federal courts.
BLACK'S LAW DICTIONARY, 1437 (8th ed. 2004).
Robert D. Peltz, The Necessity of Redefining Spoliation of Evidence Remedies in Florida, 29 FLA. ST. U. L.REV. 1289, 1337 (2002) (citing Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988) (citations omitted)).
Shamis v. Ambassador Factors Corp., 34 F. Supp. 2d 879, 888-89 (S.D.N.Y. 1999); Kronisch v. United States, 150 F.3d 112, 126-27 (2d Cir. 1998).
West v. Goodyear Tire & Rubber Co., 167 F.3d 776 (2d Cir. 1999).
Kirkland v. NYC Hous. Auth., 666 N.Y.S.2d 609 (App. Div. 1997). Also see Squitieri v. City of New York, 669 N.Y.S.2d 589, 590 (App. Div. 1998) (“Dismissal is warranted when discovery orders were not violated, and even when the evidence was destroyed prior to the action being filed … notwithstanding that the destruction was not malicious … or in bad faith.”).
See e.g. Becker v. Schwartz, 46 NY2d. 401 (1978).
See e.g. Byrnie v. Town of Cromwell, Bd. of Education, 243 F.3d 93, 107-08 (2 Cir. 2001).
Wendy R. Liowitz, Digital Discovery Starts to Work, National Law Journal, Nov. 4, 2002).
James W. Moore et al., Moore's Federal Practice § 37.120 (3d ed. 1999).
The author gratefully acknowledges the assistance of Melissa Solomon, summer intern, who is about to begin law school at the University of Pennsylvania.
Spoliation of evidence! It's a clunky term with varied interpretations by judges and juries. All, builders, property owners, architects and contractors are encouraged to be aware of spoliation, or else risk facing grave consequences if you lose or discard potential evidence.
Strictly speaking, spoliation refers to the destruction, hiding or withholding of evidence in a legal proceeding, and it is a crime that can result in significant fines or incarceration. Any type of legal proceeding can include an allegation of spoliation, including medical malpractice, personal injury and product defectiveness, and of course, construction or building cases.
Some proceedings involve actual building materials or equipment. For instance, while working at a construction site as a subcontractor, a man fell from a ladder he had borrowed from the general contractor. He filed suit against the general contractor for his injuries, including a claim seeking damages for the general contractor's alleged destruction or loss of the ladder, which the plaintiff claimed was vital to his additional lawsuit against the ladder's manufacturer.
Other building-related spoliation cases simply involve destroyed or hidden documents, blueprints or contracts. In this special issue of Gotham City Inspector, contributor Thomas Moverman explains what constitutes spoliation of evidence, how it's been interpreted in New York State, and what you can do to protect yourself against grievous spoliation claims.


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Cyberleagle: Who will sort out the Delfi mess?
Who will sort out the Delfi mess?
1. Media Legal Defence Initiative - submission (PDF).
The European Court of Human Rights (First Section) has found that there was no violation of Article 10 ECHR (freedom of expression) when the Estonian courts held a news website, Delfi AS, liable for defamatory statements by readers using the site’s article comments facility.
The Court’s approach to the responsibilities of internet publishers appears to challenge the principles underpinning the intermediary liability provisions of the EU ECommerce Directive. The Court declined to question the Estonian courts’ narrow interpretation of the ECommerce Directive, even though it was in almost all respects at odds with subsequent EU Court of Justice decisions cited to the Court.
The result is a mess of epic proportions, which it is to be hoped the Grand Chamber will have the opportunity to sort out if an appeal reference is made. [Yes. A reference was made and accepted.] Failing that a pending reference to the CJEU in a Cyprus case, Papasavvas, may enable the EU Court of Justice to weigh in.
The internet news site Delfi published up to 330 articles a day. As is now common on newspaper sites, the website had an ‘add your comment’ section at the end of each article. The comments were not routinely moderated, although there was evidence that on some occasions the site had proactively removed comments. Comments containing certain obscene words were automatically deleted. There was a notice and takedown facility for victims of defamatory comments. Any reader could mark a comment as abusive and it would be taken down expeditiously. About 10,000 comments a day were posted, the majority under pseudonyms. Once a reader posted a comment s/he had no further ability to amend or remove it.
185 comments were made about a particular article on the day of publication and the following day. Six weeks later Delfi received a complaint about 20 of them from the claimant’s lawyers and removed those comments on the same day.
The claimant then sued Delfi for damages for defamation. The first instance county court found in June 2007 that the news site was protected by the Estonian implementation of the ECommerce Directive hosting protection. Delfi could not be considered a publisher of the comments and had no obligation to monitor them. (The latter reflects Article 15 of the ECommerce Directive, which prohibits Member States from imposing general monitoring obligations on conduits, caches and hosts.).
In October 2007 the Tallinn Court of Appeal allowed an appeal on the applicability of hosting protection and remitted the case back to the county court, which duly found that hosting protection did not apply. It went on to find that the news site was a publisher and had not fulfilled its responsibilities under the Estonian Obligations Act. Certain of the comments were found to be defamatory. The news site was held liable for them and ordered to pay EUR320 damages.
“an information society service provider, falling under … the Directive on Electronic Commerce, had neither knowledge of nor control over information which was transmitted or stored. By contrast, a provider of content services governed the content of information that was being stored.
In the present case, the applicant company had integrated the comment environment into its news portal and invited users to post comments. The number of comments had an effect on the number of visits to the portal and on the applicant company’s revenue from advertisements published on the portal. Thus, the applicant company had an economic interest in the comments.
The fact that the applicant company did not write the comments itself did not imply that it had no control over the comment environment. It enacted the rules of comment and removed comments if the rules were breached.
This judgment pre-dated the CJEU decisions in both Google France v LVMS (23 March 2010) and L’Oreal v eBay (12 July 2011). Those decisions have elaborated and clarified the scope of the hosting protection, in particular the circumstances in which a commercial operator may be regarded as a host.
- The role played by the service provider must be neutral, in the sense that the service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored.
o Concordance between the keyword selected and the search term entered by an internet user was not sufficient of itself to fix Google with knowledge of, or control over, the data entered into its system by advertisers.
o Remuneration (and thus the existence of an economic interest in the relevant content) did not preclude hosting status.
o Neither did controlling the order of display of advertisements according to remuneration, setting payment terms, or providing general information to clients.
o But where it provided assistance to sellers by, in particular, optimising the presentation of the offers for sale in question or promoting those offers, that would amount to an active role in relation to those offers for sale.
In the light of these two decisions most of the grounds apparently relied upon by the Estonian Supreme Court to hold Delfi not to be a host would not now be permissible. Integration into a non-intermediary environment is no bar to hosting protection. An ‘invitation’ to post comments (by having an ‘add your comment’ box) implies no closer control or lesser neutrality than either Google or eBay manifested in relation to keyword advertising or online sellers. An economic interest in the volume of information provider by users is not a bar. Neither is setting rules for users.
eBay also establishes that it is wrong to approach hosting protection as a broad overall status. It applies to specific activities at a granular level. So acting non-neutrally in relation to some user content does not affect hosting protection for other user content for which neutrality has been maintained. Individual decisions by a news site to moderate or remove some reader comments therefore cannot be relevant to consideration of the availability of hosting protection for unmoderated comments.
Only the inability of the user in the Delfi case to withdraw the comment remains as a novel point, albeit one that on the wording of the Electronic Commerce Directive itself appears to have little merit.
The ECtHR was thus faced with making an Article 10 evaluation of the consequences of what was most likely to have been an impermissibly narrow interpretation of the ECommerce Directive hosting protections.
The ECtHR declined to step into EU law territory and determine whether that interpretation was correct. Although it heard argument on the Google France and L’Oreal v eBay cases, the Court said that it was not its role to take the place of the domestic courts, but only to determine whether in the result Delfi’s Article 10 rights had been infringed. According to the Court they had not.
The trouble is that once the Court accepted the Estonian courts’ view that Delfi was not an intermediary, the die was cast. The Court’s subsequent Article 10 analysis rests on the suspect basis that Delfi was a publisher of the readers’ comments and thus had some primary responsibility for them, rather than was acting qua intermediary in relation to them.
Yet that suspect characterisation of Delfi’s activity is the very reason why the national court found it liable. How, one might ask, can the Court conduct a proper Article 10 evaluation of the liability attached to Delfi’s activities if it constrains its characterisation of those activities by reference to the very court decisions which are said to have wrongly interfered with the applicant’s Article 10 rights?
So for instance when the Court, while discussing Delfi’s take down mechanisms, refers to Delfi’s “duty to avoid causing harm to third parties’ reputations” and its “duty of diligence”, from whence do these duties in relation to third party comments spring? It can only be from the fact that the Court has predetermined Delfi’s status to be one of publisher rather than intermediary, by deferring to the national court’s decision that Delfi’s activity was governed by the Estonian Obligations Act. It is difficult to conceive of such a duty being consistent with the position of neutral intermediary.
When we are in intermediary territory a different balance has to be drawn. Indeed freedom of expression is at the heart of the ECommerce Directive’s intermediary liability protections, reflecting that there is a general interest in not imposing liabilities or content monitoring obligations on intermediaries, as the engines driving the free flow of information.
So if Delfi was based on the assumption that Delfi was a publisher, can the decision be sidelined as having no application to genuine online intermediaries? Possibly. But it could also be argued that the Court’s findings as to Article 10 apply to anyone in a factual position analogous to that of Delfi, regardless of the legal status accorded to it by the domestic courts.
It would have been better if the Court had stated clearly whether on the facts before it the Court itself regarded Delfi as being in the position of an intermediary or a publisher, then analysed the Article 10 questions in that light, rather than defer to the decision of the national court on a point that so fundamentally affects the Article 10 analysis. As it is, the Court has proceeded on an artificial basis set by the national court that Delfi is deemed to have published the readers’ comments.
In any event Delfi’s activities were close enough to being those of an intermediary (and probably would generally be regarded as intermediary activities) that the decision has the potential to weaken thehuman rights foundation of intermediary liability protections.
“the Court considers that the applicant company, by publishing the article in question, could have realised that it might cause negative reactions against the shipping company and its managers and that, considering the general reputation of comments on the Delfi news portal, there was a higher-than-average risk that the negative comments could go beyond the boundaries of acceptable criticism and reach the level of gratuitous insult or hate speech.
It also appears that the number of comments posted on the article in question was above average and indicated a great deal of interest in the matter among the readers and those who posted their comments.
This obligation was founded not on the controversial nature of the original article itself, which the court acknowledged was “a balanced one, a manager of the shipping company was given the opportunity to provide explanations, and the article contained no offensive language.”, but on the likely broad interest of the article and the alleged general reputation of reader comments on the site.
In view of the Court’s emphasis on the professional and commercial character of the Delfi site, it seems unlikely that its logic would necessarily apply to comments on, say, a blog. However many amateur or semi-amateur blogs do take advertising and the Court’s reasoning could apply to those, at least if they reach a certain size, reach or popularity.
The court went on to factor in anonymity, observing that it was Delfi’s decision to allow anonymous comments by non-registered users, and that by doing so “it must be considered to have assumed a certain responsibility for these comments”.
If Delfi is not referred to the Grand Chamber, the forthcoming CJEU case of Papasavvas, a reference from the Nicosia District Court lodged in July this year, may present an opportunity to start undoing the Delfi damage.
The CJEU is in part a human rights court. It has long treated the ECHR as part of EU law. EU law now explicitly incorporates the EU Charter of Fundamental Rights. SABAM v Scarlet and SABAM v Netlog show that the CJEU can give Article 10 ECHR and Article 11 of the Charter significant weight in the context of the internet.
Like Delfi, Papasavvas concerns the position of a news website under the ECommerce Directive. Unlike Delfi, the questions relate to material provided by employees and freelance journalists, rather than comments by readers. While therefore the questions asked do not bear directly on the Delfi facts, they are sufficiently close that Papasavvas could provide the CJEU with the opportunity to emphasise the importance for freedom of expression of maintaining the breadth and substance of intermediary liability protections.

matches: CJEU CJEU CJEU CJEU CJEU CJEU


Adrian Agostini, Bradford, PA, pro se.
Defendant Adrian Agostini ("Agostini") brought this petition pursuant to 28 U.S.C. § 2255 to vacate his sentence under the judgment of conviction in which he was found guilty by a jury of one count of assault in aid of racketeering in violation of 18 U.S.C. § 1959(a)(3), and one count of conspiracy to distribute and possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 846. The Court sentenced Agostini to 300 months of incarceration. This term included an upward departure from the upper end of the Sentencing Guidelines range of 262 months, and an apportionment of the total enhanced sentence to impose consecutive sentences of 180 months on the first count and 120 months on the second count. See United States v. Agostini, 365 F. Supp. 2d 530, 541 (S.D.N.Y. 2005). Agostini challenged his conviction on appeal, raising some of the issues he asserts in the instant petition. The Second Circuit affirmed the judgment in every respect. See United States v. Agostini, 184 Fed. Appx. 128, 130 (2d Cir. 2006).
As basis for relief, Agostini's petition asserts four grounds: (1) the Court's instructions to the jury were confusing, as demonstrated by the jury sending out questions seeking further explanations and clarifications; (2) counsel rendered ineffective assistance by failing to file a timely motion for acquittal pursuant to Federal Rule of Criminal Procedure 29 ("Rule 29"), not seeking an appeal of an Allen charge or a reduced sentence on the conviction involving multiple drugs, and failing to advise on the benefits of non-trial dispositions; (3) the Court enhanced the sentence on the basis of uncharged offenses not determined by the jury; and (4) the Court erred in considering acquitted conduct in the sentence imposed.
Having reviewed Agostini's petition in the light of his trial, sentencing and post-trial proceedings, the Court finds that the record conclusively shows that Agostini is entitled to no relief. None of the grounds Agostini raises in support of his petition demonstrates sufficient merit to warrant any further proceedings on his application, hence compelling summary denial of the petition. See 28 U.S.C. § 2255.
Agostini's general and unsubstantiated assertion that the jury instructions as a whole were defective because the jury sought further clarification of some issues is baseless. The instructions were prepared with the full participation of Agostini and his counsel, at every conference. Agostini raised no objections to the instructions in their totality as being confusing and fundamentally defective. To the extent he did not specify such overall objections, any challenge to the instructions at this point is procedurally barred, and not a proper subject for relief pursuant to § 2255. See Bousley v. United States, 523 U.S. 614, 622-23 (1998); see also Frederick v. United States, No. 01 CV 7826, 2005 WL 2175904, at *11, *13 (E.D.N.Y. September 8, 2005).
Regarding Agostini's claim that counsel failed to file a Rule 29 motion for acquittal on his behalf, the Court has already determined that even if such a motion had been timely submitted, there still would have been no grounds to grant acquittal in this case, in view of the overwhelming evidence sufficient to sustain a conviction. The Second Circuit concurred. See Agostini, 184 Fed. Appx. at 130 ("The evidence presented at trial was sufficient to support the convictions."). For the same reason, the Second Circuit also considered and rejected Agostini's claims based on alleged violations of Crawford v. Washington, 541 U.S. 36 (2004). It found that there was no plain error in the admission of co-conspirator plea allocutions because there was ample evidence on the record to sustain the jury's findings regarding the existence of a conspiracy. See id. In light of the substantial evidentiary record independently supporting the jury's verdict, there is no reasonable basis to sustain a finding satisfying the second element of the Strickland test for a sufficient claim of ineffective assistance of counsel: that, but for counsel's errors, there is a reasonable probability that the result of the proceeding would have been different. See 466 U.S. at 687.
With respect to Agostini's claim of error under Apprendi v. New Jersey, 530 U.S. 466 (2000) grounded on the Court's enhancement for uncharged conduct of obstruction of justice, the Court has already addressed the point, finding such adjustment appropriate under applicable doctrine in this Circuit. See Agostini, 365 F. Supp. 2d at 537 n. 3 (citing United States v. Dugue, 123 Fed. Appx. 447 (2d Cir. 2005)).
Finally, Agostini's charge of constitutional error in the Court's weighing acquitted conduct as a sentencing consideration is equally meritless under existing case law. See United States v. Santiago, 413 F. Supp. 2d 307, 315 (S.D.N.Y. 2006) (citing United States v. Crosby, 397 F.3d 103, 112 (2d Cir. 2005)); see also United States v. Garcia, 413 F.3d 201, 220 n. 15 (2d Cir. 2005) (reaffirming that "[j]udicial authority to find facts relevant to sentencing by a preponderance of the evidence survives [United States v. Booker, 543 U.S. 220 (2005)]").
Accordingly, finding no basis for relief in this action, the Court denies Agostini's petition.
ORDERED that the petition of Adrian Agostini (Docket No. 1) to vacate the sentence rendered pursuant to the judgment of conviction in this case is DENIED.
The Clerk of Court is directed to close this case.


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NAMES OF CONCURRING OR DISSENTING JUDGES: Dore, J., dissents by separate opinion.
NATURE OF ACTION: A state political party sought extraordinary relief requiring a partisan primary election, or alternatively a specific filing period, prior to a general election to fill a vacancy in the office of United States Senator.
Supreme Court: By an order dated September 9, 1983, the court DENIED the requested relief. In this opinion pursuant to a statement in the order that an explanatory opinion would follow, the court holds that any opinion based on prior law would have no precedential significance because of legislative action subsequent to the order.
COUNSEL: WICKWIRE, LEWIS, GOLDMARK & SCHORR, by CHARLES A. GOLDMARK, O. YALE LEWIS, KEVIN F. KELLY, and B. GERALD JOHNSON, for petitioners.
KENNETH O. EIKENBERRY, ATTORNEY GENERAL, and EDWARD B. MACKIE, CHIEF DEPUTY, for respondents.
DANIEL B. RITTER on behalf of the Republican Party, amicus curiae.
MAJORITY OPINION: By order dated September 9, 1983, this court denied petitioner's request for the issuance of an alternative writ of mandamus directing respondents to cause a partisan primary election for the office of United States Senator to be held on a date between October 4 and 11, 1983, or in the alternative an alternative writ of mandamus directing respondents to establish a special 5-day filing and withdrawal period for candidates commencing September 26, 1983. The foregoing request was occasioned by the death of Senator Henry M. Jackson. In denying this request, our order indicated that an explanatory opinion would follow. Immediately following the entry of the order, however, the Washington State Legislature enacted Senate Bill 4279, 48th Legislature (1983), which provided for a primary election to be held on October 11, 1983. This legislation resolved all issues raised in this case. An opinion discussing these issues under prior law would have no precedential significance. We have therefore concluded that it is unnecessary to file an explanatory opinion.
DISSENTING OPINION: By Supreme Court order under date of September 9, 1983, the majority of this court denied petitioner's request for the issuance of a writ of mandamus directing respondents to cause a partisan primary election for the office of United States Senator.
I dissented, alleging that constitutional guaranties require a partisan primary prior to the general election.
The majority of this court now feels that subject case is moot and no further opinion need be issued. I disagree. While Senate Bill 4279 resolved the immediate issues of this action, a moot case may nonetheless be decided if it involves matters of continuing and substantial public interest. The criteria to be considered in determining whether a sufficient public interest is involved are: (1) the public or private nature of the question presented; (2) the desirability of an authoritative determination which will provide future guidance to public officers; and (3) the likelihood that the question will recur. IN RE CROSS, 99 Wn.2d 373, 662 P.2d 828 (1983); SORENSON v. BELLINGHAM, 80 Wn.2d 547, 496 P.2d 512 (1972).
Nowhere is there a more substantial public interest than in the sanctity of our electoral process. I believe that this court must guarantee, where the Legislature has failed to provide, that we elect our public officials by an orderly voting process in compliance with constitutional mandate. There necessarily exists a strong desirability of an authoritative determination of these issues which will provide future guidance to our state officials for establishing partisan primary elections. This court cannot defer its responsibilities in the hope that the Legislature will take emergency action to design election procedures that meet constitutional mandates. If our democratic system, as we know it, is to survive, our court should not hesitate to act on constitutional issues to ensure the sanctity of the ballot box.
The election ordered by Governor Spellman, as advised by the Attorney General, contemplated a partisan election with no preceding primary. The Governor's writ provided that we dispense with the state primary election and, in its place, there be 3 days of OPEN filing in which any person could file as a candidate of any party. Persons would be allowed to nominate themselves as candidates of a major political party merely by filing a declaration of candidacy. Party members and members of the public would have no opportunity to determine which candidates are to represent each major political party. Multiple candidacies claiming to represent the Democratic and Republican parties would occur.
The principal contention put forward by the Attorney General for not calling for a primary election was that there was insufficient time to effectuate an orderly election process which encompassed both a primary and general election. It is interesting to note that within a week of this court's order, the Legislature met in emergency session and set a primary election to be held on October 11, 1983. This legislation effectively refuted the timeliness issue propounded by the Attorney General.
The election procedure contemplated by the Governor's writ would certainly have created chaos, made a mockery of the State's political process, and elected a United States Senator by a small minority of the State's voters.
PROVIDED, That the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
" When a vacancy happens in the representation of this state in the senate of the United States the governor shall make a temporary appointment until the people fill the vacancy by election at the next ensuing general state election.
The election process, as contemplated by the Governor's writ, would apparently permit as many persons as are interested to file for the Senate position as Republicans or Democrats. The names of all of these persons, together with any qualifying minor party or independent candidates, would then appear on the November 8 election ballot. The individual who receives the most votes, even if only a plurality, would be the winner.
The Governor's electoral scheme was not in accordance with law. The office of United States Senator is a partisan elective office under Washington law. SEE, E.G., RCW 29.30.091, .390.
The essence of a partisan elective office is that elections for it are contested either by candidates nominated by political parties or by independent candidates who speak for themselves and owe allegiance to no party. A fundamental principle of Washington's electoral law is that in a partisan election there shall be only one nominee from each political party. The law of this state is clear that when a primary election is feasible, nominations for partisan office shall be by primary election.
Washington election law acknowledges the different roles of minor and major political parties in the election process. For example, the major parties select candidates by means of partisan primaries under RCW 29.18 while the minor parties generally proceed by nominating convention in accordance with RCW 29.24. Furthermore, only the major parties have the statutory authority to fill vacancies on their tickets. RCW 29.18.150.
This recognition of the special roles played by major parties is, of course, in accord with the long-established 2-party political system which has existed throughout most of the history of the United States. This system can be contrasted with the election process commonly used in European countries which involves multiple minority parties which form majorities by joining forces in temporary coalitions.
A political party's selection of nominees for an election plays a crucial role in the electoral system. "Indeed, the nomination of candidates by the major parties has been called the 'most critical stage' of the electoral process." DEVELOPMENTS IN THE LAW - ELECTIONS, 88 Harv. L. Rev. 1111, 1151 (1975).
" Nominating primaries for general elections to be held in November shall be held at the regular polling places in each precinct on the third Tuesday of the preceding September or on the seventh Tuesday immediately preceding such general election, whichever occurs first.
" If a vacancy occurs . . . before the fourth Tuesday prior to the primary for the next general election following the occurrence of the vacancy, a successor shall be elected to that office at that general election. Except during the last year of the term of office, if such a vacancy occurs on or after the fourth Tuesday prior to the primary for that general election, the election of the successor shall occur at the next succeeding general election.
The elected successor shall hold office for the remainder of the unexpired term.
RCW 41.12.040 reflects the legislative judgment that it is better to delay the election of a successor than to hold a general election which is not preceded by a properly conducted primary.
" Whenever there is a vacancy existing by death, resignation, disability or failure to qualify or impending vacancy in the office of representative in the congress of the United States from this state or any congressional district in this state, the governor shall order a special election to fill the vacancy. Within ten days of such vacancy occurring he shall fix as the date for the special election a day not less than ninety days after the issuance of the writ. He shall fix as the date for the primary for nominating candidates for the special election, a day not less than thirty days before the day fixed for holding the special election. . . . If the vacancy should occur later than the second Friday following the close of the filing period, a special primary and special general election to fill such vacancy shall be held after the regular annual general election but, in any event, no later than the ninetieth day following the said November election.
Again, the Legislature has expressed its view that a primary election is such an integral part of the election process that an entirely separate special primary and election must be held if the vacancy occurs at a time which precludes participation in the regular primary process.
This court should follow the uniformly expressed legislative policy favoring primary elections. This policy accurately reflects the overriding legislative concern that elections be conducted in accordance with orderly mechanisms to assure a fair expression of the voter's choice.
As related above, the Washington Legislature has expressed a strong preference for conducting partisan elections by means of a primary, which is used to narrow the field of candidates, followed by a general election. A similar but distinct legislative policy favors the meaningful participation of the political party system and recognizes the importance of preserving the participation of the major political parties in the election process. One example of this policy is found in RCW 29.18.150, which provides a mechanism by which a major political party can fill a vacancy on its ticket resulting from the failure of any party member to file for a particular elective office. Similarly, RCW 29.18.160 provides for a major political party filling a vacancy on its ticket caused by the death or disqualification of one of its candidates.
The Washington Legislature's recognition of the importance of the major parties is also evidenced by the elaborate statutory framework contained in RCW 29.42, governing the authority of political party organizations and the procedures by which the leadership of such organizations is determined. The importance of participation by the major political parties in particular is evidenced by RCW 29.42.010(6), which authorizes all political party organizations to perform the functions inherent in such an organization but authorizes only the major political parties to designate candidates to appear on the primary election ballot under RCW 29.18.150.
The election process envisioned by the Governor's writ effectively eliminates party participation in selection of party candidates, depriving members of the constitutional right of association.
"There can be no doubt that the political party has a legitimate - indeed, compelling - interest in ensuring that its selection process accurately reflects the collective voice of those who, in some meaningful sense, are affiliated with it. Freedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association's being.
(Footnote omitted.) L. Tribe, AMERICAN CONSTITUTIONAL LAW 13-24, at 791 (1978).
The Governor's writ directed that we dispense with the state primary election and, in its place, there be 3 days of OPEN filing in which any person could file as a candidate of any party. Such a directive, obviously, does more than simply "impair" the party's critical function in nominating candidates; it does away with it entirely, and if inclusion of persons of adverse political principles can seriously distort the collective decisionmaking of a party, how much more distorted will be the result where the party has been stripped of any voice whatsoever in determining who is to be its candidate. A rule which would allow persons having only tenuous affiliations with the party to present themselves as its candidate wholly undermines the party members' associational rights to identify those who best represent the party's principles and to limit its candidates to those persons.
In COUSINS v. WIGODA, SUPRA, the United States Supreme Court held that a state court injunction which would have required, in effect, that the National Democratic Party seat delegates not chosen in accordance with party guidelines was a significant and unconstitutional interference with protected rights of political association, unjustified by the state's asserted interest in maintaining the overall integrity of the electoral processes. COUSINS, at 487-88.
Six years later in DEMOCRATIC PARTY, the Court held that the Democratic Party of the United States (National Party) could, in order to protect itself from intrusion by persons with "adverse political principles," refuse at convention to seat delegates bound under state law to vote in a manner inconsistent with party rules. Delegate selection rules of the National Party provided that only those willing to affiliate publicly with the party could participate in the selection of delegates to the national convention. Wisconsin delegates were required by state law, however, to vote at the national convention in accordance with the votes of an open primary in which persons not affiliated with the National Party or any party could vote.
When the National Party refused to seat Wisconsin's delegates, the State sought a declaration that the Wisconsin delegate selection scheme was constitutional as applied to the party and that the party could not lawfully refuse to seat the Wisconsin delegation. In rejecting the State's claims, the Court reaffirmed the freedom to associate for the common advancement of political beliefs and recognized that the inclusion of Wisconsin's delegates in the convention processes could have seriously distorted its collective decisions, "thus impairing the party's essential functions . . ." 450 U.S. at 122.
In ILLINOIS BD. OF ELECTIONS v. SOCIALIST WORKERS PARTY, 440 U.S. 173, 184, 59 L. Ed. 2d 230, 99 S. Ct. 983 (1979), the Supreme Court held unconstitutional a requirement of the Illinois election code regulating access to ballots by new political parties and individual candidates. The Court found that the restrictions, which imposed a signature requirement on new parties and individuals before they would be allowed access to the ballot, burdened the fundamental rights to associate for the advancement of political beliefs and to cast votes effectively. The freedom to associate as a political party, a right we have recognized as fundamental, has diminished practical value if the party can be kept off the ballot. Similarly, the freedom to associate as a political party has greatly diminished practical value if numerous persons can designate themselves on the ballot as candidates for the same office affiliated with the same party in the same general election, while the party itself is denied the opportunity to designate one candidate as its official representative.
Thus, in LANGONE v. SECRETARY OF THE COMMONWEALTH, SUPRA, the court refused to strike down a state party charter provision which stated, in effect, that only those persons receiving at least 15 percent of the delegate votes at the state convention could appear on the party's primary ballot. The court noted that the winner of a plurality of the party primary would become the party's candidate in the state general election, and that registered voters who signed nominating petitions were not required to be members of the party. Thus, if the 15 percent rule were struck down, a regular party member could be placed on the party ballot as the party candidate. To strike down the 15 percent rule, the court held, would, therefore, substantially infringe upon the party members' rights of free association.
Had the LANGONE court eliminated the 15 percent rule, the resultant scheme would have been the functional equivalent of the 3-day open filing period as provided by the Governor.
"A procedure inviting or permitting every citizen to present himself to the voters on the ballot without some means of measuring the seriousness of the candidate's desire and motivation would make rational voter choices more difficult because of the size of the ballot and hence would tend to impede the electoral process. . . .
. . . The means of testing the seriousness of a given candidacy may be open to debate; the fundamental importance of ballots of reasonable size limited to serious candidates with some prospects of public support is not.
LUBIN, at 715, QUOTED IN ILLINOIS BD. OF ELECTIONS v. SOCIALIST WORKERS PARTY, SUPRA at 185; SEE JENNESS v. FORTSON, 403 U.S. 431, 442, 29 L. Ed. 2d 554, 91 S. Ct. 1970 (1971).
In sum, the effective denial of the right of the major parties and their members to select by primary a respective single candidate for the office of Senator to advance the shared political beliefs and goals of the respective party and its members seriously burdens the constitutionally protected right of political association guaranteed to the parties and their members. Simultaneously, that denial would significantly reduce the effectiveness of the votes of all qualified voters in this state, regardless of their political persuasion, thus infringing their constitutionally protected right to cast their votes effectively.
""[T]he right to exercise the franchise includes the right to cast one's vote effectively . . . whether that effectiveness be measured quantitatively . . . or qualitatively." Political parties enhance effective suffrage through collective support of candidates and policies. Within the context of partisan primaries, then, the right to vote takes on certain aspects of a group, rather than a purely personal, right. Not only the right of individuals - whether members or nonmembers of the party - to vote is involved. The right of the party to select a candidate acceptable to the party membership, that is, "to remain as a single coalition in the general election," is also affected.
In this context, "the right of individuals to associate for the advancement of political beliefs" overlaps "the right of qualified voters . . . to cast their votes effectively;" the right to vote becomes a function of association.
(Footnotes omitted.) Note, PRIMARY ELECTIONS: THE REAL PARTY IN INTEREST, 27 Rutgers L. Rev. 298, 302 (1974).
Because interference with the freedom of a political party to exercise an effective role in the nomination of its candidates is simultaneously an interference with the fundamental, associational rights of its adherents, DEMOCRATIC PARTY, at 122; SWEEZY v. NEW HAMPSHIRE, 354 U.S. 234, 1 L. Ed. 2d 1311, 77 S. Ct. 1203 (1957), infringement of that freedom can only be justified by a compelling state purpose. COUSINS, at 489; WILLIAMS v. RHODES, 393 U.S. 23, 21 L. Ed. 2d 24, 89 S. Ct. 5 (1968). No such purpose appears in this case, however.
It is true that Senator Jackson's untimely death on September 1 created a vacancy only 68 days prior to the state November 8 general election, and that this is a comparatively short time in which to conduct a statewide campaign. But while shortness of time can justify deferral of an election, SEE STATE EX REL. FERGUSON v. SUPERIOR COURT, 140 Wash. 636, 250 P. 66 (1926), it is not sufficiently compelling to deprive a political party of its constitutional right to participate in the nomination of its candidate.
It is especially crucial, where time to mount an effective campaign is short, that candidates accurately reflect the views and principles of the party in whose name they run, since party affiliation may in such cases be a determinative factor in the minds of the voting public. Potential solutions are available to meet the State's interest in conducting an orderly election, but which would allow political parties participation in the candidate selection process. The 3-day open filing period is "[m]ore of an intrusion on the party's fundamental right of association than is required . . ." to protect the State's interest and, therefore, in my opinion is unconstitutional. LANGONE v. SECRETARY OF THE COMMONWEALTH, 446 N.E.2d at 46.
It seems incongruous to me that our Supreme Court, possessor of awesome constitutional powers, sidestepped a rather simple solution, to uphold the constitution and to permit the majority of our voters through a primary election to accurately reflect their choice for the office of United States Senator.
I would have directed the Secretary of State, the chief election officer, to cause a primary election to be set and held prior to the general election to fill the vacant and unexpired term of United States Senator in the state of Washington.

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