RCM 909(a) states that “[n]o person may be brought to trial by court-martial if that person is presently suffering from a mental disease or defect rendering him or her mentally incompetent to the extent that he or she is unable to understand the nature of the proceedings against them [sic] or to conduct or cooperate intelligently in the defense of the case.” See also 18 U.S.C. § 4241(d). The accused is presumed to have capacity to stand trial. RCM 909(b).
“No person may be brought to trial by court-martial unless that person possesses sufficient mental capacity to understand the nature of the proceedings against that person and to conduct or cooperate intelligently in the defense of the case.” MCM, RCM 909 (1984).
United States v. Proctor, 37 M.J. 330, 336 (C.M.A. 1993). The Court found that in determining competency to stand trial, the true issue is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has rational as well as factual understanding of the proceeding against him. It is not enough that he is oriented to time and place and has some recollection of events.
United States v. Schlarb, 46 M.J. 708 (N-M. Ct. Crim. App. 1997). In this case the defendant did not establish a lack of mental capacity to stand trial where she testified clearly and at length on four occasions, showing a clear understanding of the proceedings.
Indiana v. Edwards, 554 U.S. 164 (2008). In a case where the defendant wants to represent himself, the Supreme Court held that the Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant is mentally competent to represent himself. The Court may determine that a defendant who is mentally competent to stand trial is not competent to represent himself.
Amnesia is not equivalent to a lack of capacity. The ability of an accused to function is absolutely critical to the fairness of a criminal trial. In deciding whether an accused can function, a military judge can apply factors set out in Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968): (1) the extent to which the amnesia affects the accused’s ability to consult and assist his lawyer; (2) the extent to which the amnesia affects the accused’s ability to testify on his own behalf; (3) the extent to which the evidence could be extrinsically reconstructed, in view of the accused’s amnesia; (4) the extent to which the Government assisted the accused and defense counsel in reconstruction; (5) the strength of the Government case; and, (6) any other facts and circumstances that would indicate whether the accused had a fair trial.
United States v. Axelson, 65 M.J. 501 (A. Ct. Crim. App. 2007). The Court stated that the defendant’s failure to recall facts pertaining to an offense does not preclude defendant from pleading guilty so long as, after assessing the Government’s evidence against him, he is convicted of his own guilt.
UCMJ art. 76b and RCM 909.
RCM 909(d) allows the military judge to conduct an incompetence determination hearing either sua sponte or on request of either party.
The Defense has the burden of proof by a preponderance of the evidence.
If the sanity board concluded that the defendant is not competent, the military judge shall conduct a competency hearing.
The military judge determines whether the accused is competent to stand trial. See United States v. Proctor, 37 M.J. 330 (C.M.A. 1993); Short v. Chambers, 33 M.J. 49 (C.M.A. 1991). However, once a sanity board is requested, the military judge must consider the sanity board report before ruling on the defendant’s capacity to stand trial. United States v. Collins, 41 M.J. 610 (A. Ct. Crim. App. 1994).
An accused who is found incompetent to stand trial shall be hospitalized by the Attorney General for a reasonable period of time, not to exceed 4 months, to determine whether his condition will improve in foreseeable future, and for an additional reasonable period of time. The additional period of time ends when: the mental condition improves so that trial may proceed, or, charges are dismissed.
Upon a finding of incompetence, if the convening authority agrees, there is no discretion regarding commitment. United States. v. Salahuddin, 54 M.J. 918 (A.F. Ct. Crim. App. 2001); see also RCM 909(e)(3) and 18 U.S.C. § 4241(d).
The four-month time period may be extended if the Government proves by clear and convincing evidence that “a substantial probability exists that the continued administration of antipsychotic medication will result in a defendant attaining the capacity to permit the trial to proceed in the foreseeable future.” United States v. Weston, 260 F. Supp. 2d 147, 154 (D.D.C. 2003).
United States v. Weston, 255 F.3d 873 (D.C. Cir. 2001). The Court concluded that the government could involuntarily administer antipsychotic drugs to a defendant in order to restore the defendant’s competence so that the defendant could stand trial.
Sell v. United States, 539 U.S. 166 (2003). Defendant was charged with fraud. A federal magistrate found him incompetent to stand trial and ordered his hospitalization to determine whether he would attain capacity to allow his trial to proceed. Sell refused to take antipsychotic drugs. Determining that forced medication solely for trial competency purposes may be rare, the Supreme Court held that the Constitution permits involuntary medication to render a mentally ill defendant competent to stand trial on serious criminal charges if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the trial’s fairness, and, taking account of less intrusive alternatives, is necessary to significantly further important governmental trial-related interests. See also United States v. Bush, 585 F.3d 806 (4th Cir. 2009).
If the defendant recovers and is competent to stand trial, the director of the facility notifies the GCMCA and sends a copy of the notice to accused’s counsel. GCMCA must take prompt custody of the defendant if the defendant is still in a military status. The director of the facility may retain custody of the person for not more than 30 days after transmitting the required notifications.
If the defendant does not improve and the director of the facility where the defendant is confined certifies that the defendant is presently suffering from a mental disease or defect and his release would create a substantial risk of bodily injury to another person or serious damage to property, the director notifies the GCMCA. The district court then conducts further hearings.
Moore v. Campbell, 344 F.3d. 1313 (11th Cir. 2003. The Court of Appeals determined that the “state court’s determination that a capital defendant in Alabama can forfeit his right to be competent – that is mentally present – at trial” was not contrary to or an unreasonable application of clearly established Supreme Court precedent, if only because the issue has not been yet decided by the Supreme Court.
Under RCM 1107(b)(5), the convening authority may not approve a sentence while the defendant lacks the mental capacity to cooperate and understand post-trial proceedings. Similarly, an appellate authority may not affirm the findings when the defendant lacks the ability to understand and cooperate in appellate proceedings. RCM 1203(c)(5). In Thompson v. United States, 60 M.J. 880 (N-M. Ct. Crim. App. 2005), the appeal was stayed because the appellant did not have the mental capacity to assist with the appeal.


Editor’s Note: This is the first of two posts discussing the ‘Rescue Operation Pegasus’ Judgment of the German Federal Constitutional Court.
In the middle of the civil war in Libya in 2011 (before the start of the UN authorised military operation), the German Chancellor, following the proposals made by the Ministers of Foreign Affairs and of Defence, decided to evacuate 132 persons (German and other civilians) from an industrial camp in Nafurah, 400 km south of Benghazi. The operation – dubbed “Operation Pegasus” – succeeded without any combat action.
Subsequently, a group of members of the German Bundestag seized the German Federal Constitutional Court and argued that the constitutional and statutory division of powers among the Executive and the Legislative branch when it comes to deciding about military action not only demands parliamentary ex ante approval but also, in those urgent cases where the Executive is allowed to decide on its own, requires a formal ex post approval. This claim was rejected by the Court (judgment of the Second Senate, 23 September 2015, No. 2 BvE 6/11).
Germany is probably the state with the most detailed legal regime on parliamentary involvement in decisions on the use of military force abroad. The allocation and division of the “war powers” in constitutional democracies between the Executive branch and Parliament reflects a tension between the need for swiftness, expertise, external unity, steadiness, and secrecy on the one hand, and a desire for democracy, accountability, and transparency on the other hand. In a simplified way, one could call this a tension between effectiveness and legitimacy. In state practice, the “war power” has traditionally been largely reserved to the executive branch. But concerns of democratic accountability and publicity have continuously gained weight, and have led – in democratic states – to an involvement of Parliaments (being the bodies enjoying the strongest democratic legitimacy) in that decision. Constitutional law is the basis of such parliamentary powers, for example, in the United States (Art. I sec. 8 of the US Constitution); in Art. 35(3) of the French Constitution, as inserted in 2008, and in Art. 102 lit. d) of the Russian Constitution.
The German Constitution (Basic Law (Grundgesetz, GG)) contains two pertinent provisions, Art. 24(2) and Art. 87a GG, which do not mention Parliament. But a constitutional requirement to seek authorisation of the first chamber, the Bundestag, was defined by the Federal Constitutional Court’s “Out of area” Judgment (BVerfGE 90, 286 of 12 July 1994), and in a second Judgment (“AWACS” − BVerfGE 121, 135, of 7 May 2008).
The German Statute on Parliamentary Participation (Parlamentsbeteiligungsgesetz of 18 March 2005, BGBl. 2005 I, 775) is seen as codifying the prior constitutional case law. This means that the parliamentary “prerogative” is considered to flow directly from the Basic Law. And the constitution is what the Judges say it is.
This Statute requires approval of the first chamber (Bundestag) in form of a simple parliamentary resolution, adopted by simple majority for any “deployment of German armed forces outside the scope of the Basic Law” (Paragraph 1(2) Parlamentsbeteiligungsgesetz). Paragraph 2(1) of the Statute explains in more detail what “deployment of armed forces” means: “A deployment of armed forces is present when soldiers of the German army are involved in armed undertakings or when the involvement in an armed undertaking is to be expected.” In the AWACS decision, the German Federal Court specified that the expectation of involvement must be “concrete”. Paragraph 2(2) of the Parlamentsbeteiligungsgesetz defines which activities do not qualify as deployment. These are: (1) preparatory measures and planning; and (2) humanitarian aid with arms carried only for self-defence if there is no (concrete) expectation of involvement in armed undertakings.
As in other states, the legal regime on parliamentary involvement foresees special procedures for situations of urgency or emergency. Under Paragraph 5 of the Parlamentsbeteiligungsgesetz, Government may decide without Parliament in cases of imminent danger (“Gefahr im Verzug”), but needs to get approval later. Approval must be sought “promptly” (“unverzüglich”).
Finally, there is a simplified procedure for “deployments of low intensity and scale” which requires involvement of two parliamentary committees – the Foreign Affairs Committee and the Defence Committee (Paragraph 4 of the Parlamentsbeteiligungsgesetz).
In 2014, a parliamentary committee was set up to explore amendments to the pertinent Statute in order to flexibilize the procedures. But the resulting Rühe report of 16 June 2015 (BT Drs. 18-5000) was rather in favour of strengthening parliamentary powers.
For safety reasons, the evacuation of February 2011 was performed with military means and under military protection. Because the area in the Eastern part of Libya was already in the hands of the opposition’s armed forces with whom no diplomatic contacts existed, 22 Germans and 110 citizens of other states were flown out in two military transportation airplanes (Transall C-160), staffed with 21 soldiers, equipped with pistols and machine guns.
The command to start the operation was given by the Minister of Defence on the evening of 25 February 2011. The Minister of Foreign Affairs had, during the day, informed by telephone the chairpersons of the political factions sitting in the Bundestag, asking them to keep strict confidentiality. On the next evening, he again informed those MPs about the successful outcome of the operation.
Because no armed force was actually used, the public international law question whether Blitz-type military operations to rescue nationals form an exception to the general prohibition of the use of force under Article 2(4) of the UN Charter (maybe as a type of self-defence) did not arise.
In March 2011, some members of the Bundestag unsuccessfully tried to bring about a formal parliamentary resolution in which the Chamber would have formally requested the Government to seek ex post authorisation for the military operation. The Bundestag did not adopt such a resolution.
In August 2011, the political group “Bündnis 90/Die Grünen” then seized the Constitutional Court in a judicial procedure by which a specific number of members of the Parliament’s First Chamber (the Bundestag) can claim infringements of the legal status of that organ (“Organstreit” under Art. 93 No. 1 Basic Law; § 13 and §§ 63 et seq. of the Law on the Federal Constitutional Court). The rationale of this proceeding is to protect the minority in Parliament by allowing that minority to vindicate parliamentary powers against the Executive branch, even when the majority in Parliament does not want to invoke these powers.
The German Federal Constitutional Court ruled that the German Constitution, the Basic Law (Grundgesetz), does not require that Parliament gives an ex post assent to a military rescue operation which is already terminated. However, the Executive branch must swiftly and fully inform Parliament.
The technical explanation for this eminently practical and commonsensical holding is that the Government’s lawful use of its urgency powers, while interfering with the prerogative of Parliament, has the same legal effect as a joint deployment decision of both institutions taken in normal situations. The governmental decision does not need a retroactive authorisation by Parliament but can stand alone.
While Parliament must be immediately informed, this type of involvement is no “authorisation” with any concrete legal effect. Any other understanding would lead to the legal consequence that – if Parliament ex post refuses to grant authorisation for such an urgent operation − the deployment would have to be qualified as having been unlawful from the beginning (para. 87). And, because this cannot be, the Court construes the governmental power to make urgent decisions as an (“auxiliary”) stand-alone power (para. 88) which “modifies” the principle of parliamentary co-decision in situations where – for purely factual reasons – Parliament cannot exercise its powers (para. 100).
The rationale of Parliament involvement as identified by the Court points against an ex post approval of operations which are already finished. The purpose of the parliamentary prerogative is that Parliament decides jointly with the Executive, and assumes co-responsibility. Once the situation is over, this function cannot be fulfilled anymore (para. 99). By contrast, the purpose of parliamentary approval is not to assess authoritatively the legality of an operation; this is incumbent upon the Court (para. 99). Political control by Parliament can be exercised through other types of instruments, e.g. parliamentary resolutions or even a motion of censure against Government (para. 101).
In order to allow Parliament to exercise these forms of political control, it is the duty of the Government to inform it in detail about the military operation. Parliament enjoys an “entitlement to information” (para. 104).
Applying these principles as a benchmark, the Court found that the rescue operation in Nafulah was indeed a “deployment” in the sense of the Basic Law and the relevant Act of 2005. Despite its minimal character, the operation held the “potential for military entanglement” (para. 114). The non-occurrence of actual combat activity did not alter the fact that there had been indeed a concrete expectation that German soldiers would be − during the evacuation − involved in an armed conflict (paras 105−117).
Normally, this situation would have triggered the Government’s obligation to seek parliamentary approval. However, it was undisputed that there was in fact a situation of imminent danger which entitled the Government to decide on deployment without waiting for the Bundestag.
The legal question here was only whether, when the parliamentary decision on the concrete deployment is no longer possible for factual reasons, the constitutional parliamentary prerogative requires the Government to seek ex post facto approval by Parliament. And this the Court answered in the negative: there is no such obligation. The Government’s refusal to seek ex post authorisation by the Bundestag was thus not unconstitutional.
(And because the MPs had not claimed that Government had, in the case of Nafurah, not properly informed Parliament about the operation, the legal details of the governmental obligation of “immediate and comprehensive information” to Parliament was not examined on substance by the Court).


ERROR to the Circuit Court for the Southern District of Alabama.
This was an action of debt brought by the United States against Le Baron, surety of Beers, deputy postmaster at Mobile, on an official bond, dated the first of July, 1850.
'That while the said Beers was deputy postmaster as aforesaid under said writing obligatory, and after the making and delivery thereof, to wit, on the 10th day of July aforesaid, and divers other days before the commencement of the suit,' &c.
Beers was appointed deputy postmaster at Mobile by the President during the recess of the Senate, and received a commission bearing date in April, 1849, to continue in force until the end of the next session of the Senate, that is to say until the 30th of September, 1850.
In April, 1850, before the old term had expired, he was nominated by the President to the Senate for the same office; and the nomination having been confirmed, a commission was made out and signed by President Taylor, but the President dying, it had not been transmitted to him at the date of the bond, July 1st. The condition of the bond was simply that whereas Beers was 'deputy postmaster at Mobile,' 'now, if he should well and truly execute the duties of the said office,' the bond should be void. There was nothing therefore in the bond to show to which term of office it meant to apply; whether to the earlier one which underlaid the second, or to the second which overlapped partially the first. The default assigned as a breach of the bond was admitted to have occurred under the second appointment; and the principal question on the writ of error then before this court, was, whether the bond secured the faithful performance of the duties of the office under the first or under the second appointment.
The third plea of the defendant alleged that from the 1st July until the 30th September, Beers was deputy postmaster, under an Executive appointment, made by the President during the recess of Congress, and that the bond sued on was intended to apply to that appointment and to that term alone, and that during that term no default had occurred. The replication was 'that on and after the delivery by the defendant of the bond aforesaid, to wit, on the 1st day of July,' and from thenceforward for four years, Beers held under the appointment confirmed by the Senate, and that the bond was made for the faithful discharge of duty under this appointment-the last one. The rejoinder was, that 'at the time of the execution of the bond,' Beers was not postmaster under the appointment set forth in the replication, but under the Executive appointment-and that the bond secured the performance of duty only during the time mentioned in the plea. Issue was joined on this rejoinder of the defendant.
The court held that the bond being an official and statutory bond, spoke, not like ordinary bonds, from its date, but from the time when it reached the Postmaster-General and was accepted by him. The judgment was reversed and a venire de novo awarded.
On a subsequent trial it was proved that the bond was accepted July 15th. Thereupon Circuit Court instructed the jury that if the bond given in evidence was not approved until July 15th, 1850, there was a variance between the allegation and the proof. And a verdict having gone accordingly for the defendant, the instruction just mentioned was the chief matter now assigned as error. A few exceptions to the admission of evidence also appeared upon the record.
The substance of the issue was, whether Beers was, on the first day of July, 1850, deputy postmaster under his appointment confirmed by the Senate. Whether he was or not, depended on the question whether the bond was accepted on that day, and thus became a perfect obligation on the said first day. The proof showing that the bond was not accepted until the 15th, there could, under the decision in 19th Howard, when the case was here before, be no other instructions given than were given by the court. The declaration described one bond and proved another.
Suppose that the pleader had in his replication alleged the true day on which the bond was accepted, and the office, to which it was intended to apply, vested, that is to say that he had alleged in his replication that the bond was accepted by the Postmaster-General on the 15th of July, 1850; this replication would have been a clear departure from the declaration, which described a bond operative from the first of that month.
In Hall v. Matthew Denbigh and others, reported so far back as Croke Elizabeth,  the declaration described a deed as bearing date the first of November (39 Eliz.), but did not aver when it was delivered. After judgment, there was a motion in arrest of judgment, because it was not averred when the deed was delivered: after several arguments, the court said the declaration was well enough, because it must be intended that the deed was delivered on the day of its date, and further, if it had been delivered on a subsequent day, and so averred in the replication, this would have been a departure.
The later case of Williams v. Jones,  is to the same effect and in principle similar to ours. The declaration in our case describes a bond dated the 1st July. By implication, this means delivery on that day. A delivery on another day may be proved, it is true, by parol, because as this court has decided in regard to this particular bond, there is a case of exception to the general rule, and such proof is held not to contradict the instrument;  but when it is proved, the bond is varied, and no longer conforms to the bond described nor to the profert, and is therefore fatally variant from both.
The plaintiff undertook, therefore, by his pleadings, to establish before the jury four propositions: 1. That the bond was made and delivered on the 1st of July, 1850, and was operative from that day. 2. That Beers was in office on that day under the second appointment. 3. That the senatorial term of office, or second term, embraced the time as early as the 1st July, 1850. 4. That as a consequence the defendant was liable for moneys received by the postmaster on the 1st and 10th of July, 1850.
But with the admitted fact that the bond was not accepted till July 15th, and the decision when the case was here before, that it operated but from that day, he undertook an impossibility.
In the plaintiff's replication to the third plea the time of the making and delivery of the bond are laid under a videlicet.
The execution of the bond included its signing, sealing, and delivery.  The making of the bond would seem to be the writing of it.  This rejoinder, then, tendered the substantial issue in the case, and upon that the parties went to trial.
The former decision of this court covers the merits of the case now.
^3 5 Barnwell and Cresswell, 108.
^5 Gould on Pleading, 183, § 29.
^6 McDade v. The State, 20 Alabama, 81.
^7 Tompkins v. Corwin, 9 Cowen, 255.
^8 Serle v. Darford, 1 Lord Raymond, 120.
^10 Hall v. Cazenave, 4 East, 481.


The owner of the Washington Redskins moved quickly to insert itself into any Supreme Court consideration of the constitutionality of the Patent and Trademark Office authority to cancel a registered trademark because it disparages persons. This step was taken because another trademark case involving disparagement recently landed on the Supreme Court’s door step, while the case involving the Redskins trademark registrations is months away from reaching the Supreme Court.
The Redskins trademark cancellation case has become procedurally complicated. Some background may be helpful.
Pro-Football, Inc. (PFI) has been the owner of the Washington Redskins since 1932. The Redskins name was first used in 1933 when the franchise played in Boston. Use of the name Redskins gave PFI “common law” rights protecting the name as a trademark. In 1937, the team moved to Washington. It was not until 1967 (and later in 1974, 1978, and 1990) that the Patent and Trademark Office (PTO) granted PFI federal registrations of the Redskins marks. Registration of a trademark or service mark gives the owner additional substantive and procedural rights to protect its mark, over and above the common law rights that arise from just using the mark in commerce.
This legal controversy over the Redskins registered marks began in 1992, after years of relative calm about the name. Susan Harjo and five other Native Americans filed an action with an administrative body within the PTO asking that the Redskins marks be cancelled because they disparage Native Americans. Under §2(a) of the Lanham Act, which provides for federal registration of trademarks and governs how the process works, the PTO has the power to cancel registrations that “may disparage” persons. In 1999, the PTO cancelled the registrations because of disparagement. The case then went into the federal courts in Washington D.C. where it was well-litigated until 2009. The last decision in Harjo finally held that the 1992 action to cancel was barred because of “laches,” meaning it was brought too late.
Meanwhile, while the Harjo action was still being litigated, in 2006 Amanda Blackhorse and several others asked the PTO administrative court to cancel the same Redskins registrations. Blackhorse and the other challengers had not yet reached age 18 when the PTO cancelled the registrations in 1999, and they did not unreasonably delay in filing a new action at the PTO, an action without a laches problem. The PTO cancelled the registrations again in 2014, holding that at the time of the registrations the Redskins marks contained subject matter that may disparage Native Americans and subject them to contempt and disrepute. On appeal to the U.S. District Court in Alexandria, Virginia, the court upheld the PTO and the cancellation of the registrations. Pro-Football, Inc. v. Amanda Blackhorse. PFI appealed to the U.S. Court of Appeals for the Fourth Circuit in August 2015, continuing an apparently uphill battle. The appeal in Blackhorse is still pending.
Five months after PFI noticed its appeal, another trademark decision for disparagement rode in like the cavalry. The case is entitled Tam v. Lee from the U.S. Court of Appeals for the Federal Circuit (en banc) and involves an all-Asian rock band called “The Slants”. The band’s front-man, Simon Shiao Tam, named the band “The Slants” because he wanted to make a statement about racial and cultural issues; to “take ownership” of Asian stereotypes. He sought to register the name in 2010. The PTO, however, refused to register “The Slants” because the PTO found the name to be disparaging to the Asian community. In Tam v. Lee, the Federal Circuit held that the disparagement bar in §2(a) is unconstitutional because it violates the First Amendment. This decision supports continuing the registrations of the Redskins trademarks.
As welcome as the Tam decision is to PFI and its attorneys, the case also causes some procedural problems. PFI realized that the attorneys from the U.S. Justice Department (DOJ), representing the PTO, could try to take the case to the Supreme Court for review – Tam could be decided by the Supreme Court before Blackhorse or without Blackhorse, shutting off PFI’s chance to have the Supreme Court rule on the Redskins registered trademarks.
Sure enough, on April 20, 2016, the DOJ filed a petition for certiorari asking the Supreme Court to review the Federal Circuit’s decision in the Tam case. PFI was ready for its next step. Five days later, on April 25, 2016, PFI’s attorneys filed in the Supreme Court a petition for certiorari “before judgment” is rendered by the Fourth Circuit. The federal statute empowering the Supreme Court to issue a writ of certiorari does permit the writ (an order) to issue on a petition filed “before or after rendition of judgment.” 28 U.S.C §1254. Petitioning for review before judgment of the lower appellate court is rare, but less so when the DOJ files the petition. PFI cited only five cases in the Supreme Court since 1946 where the Court issued a writ of certiorari before judgment at the request of a private party.
if the Court grants review in Tam, the Court should grant PFI’s petition and review both cases together. PFI argues several reasons to support its petition before judgment.
First, the only issue in Tam is the constitutionality of the §2(a) disparagement provision, whereas important and connected issues are present in the Blackhorse case – whether §2(a) is impermissibly vague and violates the Fifth Amendment and whether the decades-long delay between registration and cancellation violates procedural due process. Second, the decision should be rendered in the contexts of both registration and cancellation. Third, the issue is of imperative public importance. Fourth, Blackhorse is a valuable companion to the Tam case and indeed essential to a comprehensive review of the constitutional questions.
The Redskins trademark registration dispute is pending in two courts. The Fourth Circuit has months of work to do before it decides the appeal – oral argument and writing opinions – and the Fourth Court may wait to see what the Supreme Court does with PFI’s petition for certiorari. A Supreme Court decision to review the Tam decision could preempt any opportunity for PFI to have the Supreme Court decide the dispute over the cancellation of the Redskins trademark registrations.
One last recent development is a poll by the Washington Post released in May 2016 that shows 9 out of 10 Native Americans, today, are not offended by the Redskins team name. A 2004 Annenberg Center poll showed the same result. Regardless, current polls on disparagement are legally irrelevant unless and until the Supreme Court holds otherwise.
Whether the Supreme Court will make sure that the PFI and the Redskins trademark registrations are invited to the table for the proceedings remains to be seen. In any event, cancelation of the federal registrations would not prevent PFI from continuing to use “Redskins” in various common law marks, albeit marks that are harder to enforce and protect.


In Re the Marriage of: Eileen Ann Bender, petitioner, Respondent, vs. Wayne Aaron Bender, Appellant. C1-97-1540, Court of Appeals Unpublished, February 3, 1998.
Wayne Aaron Bender, 121 83rd Ave. N.E. #110, Fridley, MN 55432 (pro se).
Eileen Bender, 590 121st Lane N.E. Blaine, MN 55434 (pro se).
Appellant-father, Wayne Aaron Bender, claims that the ALJ erred by not terminating child support early enough, by not terminating maintenance, and by ordering him to pay a child support arrearage. We affirm in part, reverse in part, and remand.
The stipulated judgment dissolving the marriage of father and respondent-mother Eileen Anne Bender awarded physical custody of the parties' children to mother and set father's support and maintenance obligations. In 1997, the county notified father that a cost of living allowance would increase his obligations. Father moved to terminate support, claiming that the children were emancipated. The administrative law judge (ALJ) found that the older children were emancipated and that the youngest child was self-supporting; the ALJ terminated support, and ordered income withholding until father paid his child support arrearage. On appeal, mother and father are pro se and the county filed a brief.
Under the traditional standard of review, whether to modify support is discretionary with the district court. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). That standard [applies] on appeal of an ALJ's rulings in a dissolution case. Lee v. Lee, 459 N.W.2d 365, 368-69 (Minn. App. 1990), review denied (Minn. Oct. 18, 1990). Here, however, father's failure to provide a transcript limits our review to whether the findings of fact support the conclusions of law and the judgment. Duluth Herald & News Tribune v. Plymouth Optical Co., 286 Minn. 495, 498, 176 N.W.2d 552, 555 (1970); see Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968) (party's pro se status did not relieve him of providing adequate record).
1.	Section 518.5511 creates an administrative process for addressing child support issues. Citing the 1997 statute, the county claims the ALJ lacked jurisdiction to address whether the youngest child was emancipated. The 1997 amendments to the relevant portions of the statute were effective August 1, 1997. See 1997 Minn. Laws ch. 245, art. 1, §§ 18-22 & ch. 203, art. 6, § 93 (amending Minn. Stat. § 518.5511 (1996)); Minn. Stat. § 645.02 (1996) (amendments effective August 1 unless legislature states otherwise). Because the ALJ's order was filed July 22, 1997, the 1996 statute still was in effect when the ALJ's order was filed. See generally McClelland v. McClelland, 393 N.W.2d 224, 226-27 (Minn. App. 1986), (court generally applies law in effect when it renders decision, unless doing so would alter parties' rights), review denied (Minn. Nov. 17, 1986).
Under the 1996 statute, the ALJ did not err by reviewing the terms of the stipulated judgment addressing termination of child support. See Minn. Stat. § 518.5511, subd. 1(e) (1996) (ALJs have "all powers, duties, and responsibilities" of a district court judge regarding child support); Murray v. Murray, 405 N.W.2d 922, 926 (Minn. App. 1987) (reviewing stipulation addressing termination of child support), review denied (Minn. July 22, 1987). The stipulated judgment refers to emancipation and to a child's ability to be self-supporting as separate reasons for terminating support. Both relate to child support, and, adopting the county's implicit equation of emancipation with an ability to become self-supporting would improperly nullify one of these provisions. See Starr v. Starr, 312 Minn. 561, 562-63, 251 N.W.2d 341, 342 (1977) (rules of contract construction apply to interpretation of stipulated dissolution judgment); see also Chergosky v. Crosstown Bell, Inc., 463 N.W.2d 522, 526 (Minn. 1990) (courts presume contract language has effect and avoid interpretations rendering provision meaningless). Thus, even if the ALJ could not address emancipation, she was not precluded from deciding whether father's youngest child is able to support himself.
2.	Father claims that the ALJ erred in terminating his support obligation for the youngest child. Unless an order states otherwise, a support obligation terminates automatically when the last child for whom it was set is no longer entitled to support. Minn. Stat. § 518.64, subd. 4a(a) (1996). Here, no order states otherwise and, without finding when the youngest child became self-supporting, the ALJ terminated father's support obligation as of a week after father filed his motion for reduced support. This is inconsistent with the statute and with the findings that the youngest child has worked full time "since he dropped out of school in his sophomore year." We reverse the portion of the ALJ's order terminating support as of a week after father filed this motion and remand for the ALJ to determine when the youngest child became self-supporting.
3.	Father claims that because he paid as much maintenance and child support as he could afford, he should owe no arrearage. This is functionally a request by father to have his arrearage forgiven. See Darcy v. Darcy, 455 N.W.2d 518, 524-25 (Minn. App. 1990) (forgiving arrearage is retroactive modification of support governed by Minn. Stat. § 518.64, subd. 2). Father did not appeal the previous order denying his prior request for reduced support and any request for relief from arrearage accruing before that order cannot be granted. See Angelos v. Angelos, 367 N.W.2d 518, 520 (Minn. 1985) (orders denying motions to modify support are appealable); Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) (even if district court's decision is wrong, if it was appealable, "it is still final after the time for appeal has expired"). Regarding arrearage accruing after the previous order, support modifications may be retroactive "only" to the date the motion is served unless the district court makes findings absent here. Minn. Stat. § 518.64, subd. 2(c) (1996). Without a transcript we are unable to review the issue and we cannot assume that the district court erred. Noltimier, 280 Minn. at 29, 157 N.W.2d at 531.
4.	If a maintenance issue is "combined with a child support proceeding[,]" an ALJ may address the maintenance issue. Minn. Stat. § 518.5511, subd. 1(a) (1996). Because the record shows that father moved for maintenance reduction but the ALJ did not specifically address maintenance, we remand for the ALJ to do so.
5.	The ALJ ruled that, under Minn. Stat. § 518.611, subd. 2(f) (1996), father is required to pay 120% of his prior obligation against his arrearage until it is paid. Section 518.611 was repealed on July 1, 1997. 1997 Minn. Laws ch. 203, art. 6, § 93. The replacement provision, Minn. Stat. § 518.6111, subd. 10(c) (Supp. 1997), was not effective until August 1, 1997. 1997 Minn. Laws ch. 203, art. 6, § 48; Minn. Stat. § 645.02. Under McClelland, courts apply the law in effect when a decision is rendered unless doing so alters the parties' rights. 393 N.W.2d at 226-27. Because the county's right to reimbursement accrued before the statute was repealed, we affirm the requirement that father pay 120% of his prior obligation toward the arrearage.
6.	Before 1995, emancipation of any child automatically terminated support for that child. Minn. Stat. § 518.64, subd. 4 (1994); Reynolds v. Reynolds, 498 N.W.2d 266, 273 (Minn. App. 1993). Here, father's second child reached age 18 in February 1995. Thus, depending on the circumstances, father may have been entitled to an automatic termination of his support obligation for the older children when they reached age 18. Because the child support officer who calculated father's arrearage assumed that father's support obligation for the older children continued until his obligation to support the younger child was terminated, (1) the calculation of father's arrears may be excessive, and (2) father's support obligation, part of which he is paying towards his arrears, may be excessive. Knowledge of when father's support obligation for the older children terminated is required to determine father's arrearage and his payment toward it.
7.	On remand, whether to reopen the record shall be discretionary with the ALJ. We express no opinion on the ultimate resolution of the remanded issues.
 That the jurisdiction issue was not presented to the ALJ does not preclude this court from addressing it. See Minn. R. Civ. P. 12.08(c) (stating lack of jurisdiction may be raised at any time); Berke v. Resolution Trust Corp., 483 N.W.2d 712, 714 (Minn. App. 1992) (applying rule 12.08(c) to address jurisdictional issue raised for the first time on appeal), review denied (Minn. May 21, 1992).
 The county claims the findings do not support the ruling that the youngest child is "emancipated." Because the county did not file a notice of review, we do not review this claim. See Minn. R. Civ. App. P. 106 (respondent may raise issues on appeal by filing notice of review); City of Ramsey v. Holmberg 548 N.W.2d 302, 305 (Minn. App. 1996) (failure to file notice of review means issue "not preserved for appeal and a reviewing court cannot address it"), review denied (Minn. Aug. 6, 1996).


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The plaintiffs, B and R, sought damages from the defendants, K, J, C and F, for personal injuries B sustained when, in a classroom incident, K sprayed him in the face with a bleach solution. J and C had filled the bottle with the bleach solution, and F was the classroom teacher. K claimed that he did not know that the bottle contained bleach. The trial court granted K's motion for summary judgment and rendered judgment thereon. On the plaintiffs' appeal to this court, held: 1. The trial court erred in determining, as a matter of law, that K did not breach his duty of care to B when he failed to inspect the bottle or its contents before acting; the jury was entitled to consider whether a reasonably prudent person would spray another person with an unknown substance from a bottle without first inspecting the contents. 2. The trial court erred in determining, as a matter of law, that the actions of J and C constituted superseding causes of B's injuries; the doctrine of superseding cause must be applied to the facts of a case and, therefore, involves the resolution of questions properly left to the factfinder.
Action to recover damages for personal injuries sustained by the named plaintiff as a result of the alleged negligence of the defendants, brought to the Superior Court in the judicial district of New Haven, where the court, Corradino, J., granted the motion by the defendant Keith Goclowski for summary judgment and rendered partial summary judgment in favor of the defendant Keith Goclowski, from which the plaintiffs appealed to this court. Error in part; further proceedings.
William F. Gallagher, with whom, on the brief, was Robert P. Borquez, for the appellants (plaintiffs).
Matthew E. Frechette, for the appellee (defendant Keith Goclowski).
The plaintiffs, Brett Amendola and his father, Ralph Amendola, appeal from the judgment rendered by the trial court for the defendant Keith Goclowski after the granting of Goclowski's motion for summary judgment and the denial of the plaintiffs' motion for summary judgment. The plaintiffs claim that the court erred (1) in concluding as a matter of law that Goclowski's actions were not negligent and in failing to conclude as a matter of law that his actions were negligent, and (2) in concluding that the actions of the codefendants constituted superseding causes relieving Goclowski of liability. We agree that it was error for the court to grant Goclowski's motion for summary judgment.
The following facts are not in dispute. The minor plaintiff, Brett Amendola, and the minor defendants, Keith Goclowski, James Gregory and Chris Geremia, were high school students involved in incidents in their homeroom classroom in which the defendant boys squirted water from plastic bottles at each other and at Amendola. After about two weeks of this practice, Gregory and Geremia agreed to fill a bottle with a bleach solution. On the morning of September 26, 1984, Goclowski took a bottle from Gregory's bookbag and, in the presence of the other defendants, threw, squirted or sprayed the bleach into Amendola's face and eyes, causing severe injuries. The plaintiffs brought suit alleging negligence against Goclowski, Gregory, Geremia, the homeroom teacher, Bruce Faitsch, and the town of Guilford.
The plaintiffs moved for summary judgment against Goclowski, who then moved for summary judgment against the plaintiffs. The court denied the plaintiffs' motion and granted Goclowski's motion, determining as a matter of law that Goclowski was not negligent because he could not have anticipated that his actions were likely to result in any harm to Amendola. The court also determined in the alternative that as a matter of law the actions of Gregory and Geremia were superseding causes that relieved Goclowski of liability for his negligence. This appeal followed.
The moving party for summary judgment bears the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Practice Book 384; Esposito v. Wethered, 4 Conn. App. 641, 644, 496 A.2d 222 (1985). "To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971); Fogarty v. Rashaw, 193 Conn. 442, 445, 476 A.2d 582 (1984). A conclusion of negligence or freedom from negligence is ordinarily one of fact. Balboni v. Stonick, 2 Conn. App. 523, 527, 481 A.2d 82 (1984). The trier must determine whether, in his own opinion, the defendant's actions meet the standards of conduct for one of reasonable prudence. Id., 527-28. "Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." Spencer v. Good Earth Restaurant Corporation, 164 Conn. 194, 199, 319 A.2d 403 (1972).
The plaintiffs here alleged that Goclowski knew or should have known that the bottle contained bleach and that he failed to make reasonable inspection or examination of the contents of the bottle prior to spraying Brett Amendola. Goclowski, in his deposition and affidavit, asserted that he thought, indeed "knew," that the bottle contained water as it had on all previous occasions. The plaintiffs offered no contrary evidence that Goclowski was aware of the contents of the bottle, nor did they claim that any such evidence was available. Absent such evidence, the court was justified in determining as a matter of law that there was no support for the plaintiffs' allegation that Goclowski had prior knowledge of the bottle's contents.
In granting Goclowski's motion for summary judgment, however, the court also determined as a matter of law that Goclowski did not breach his duty of care owed Amendola when he failed to inspect the bottle or its contents before acting. This was a question of fact to be determined by the jury. "[T]he law itself furnishes no certain, specific, sufficient standard of conduct, and, of necessity, leaves the trier to determine, both what the conduct is, and whether it comes up to the standard, as such standard exists in the mind of the trier." Farrell v. Waterbury Horse R. R. Co., 60 Conn. 239, 250, 21 A. 675 (1891); see also Balboni v. Stonick, supra.
The jury here was entitled to consider whether a reasonably prudent person would spray another person with an unknown substance from a bottle without first inspecting the contents. Goclowski's subjective belief that the bottle contained water has no bearing on this question. See Murphy v. Soracco, 174 Conn. 165, 168, 383 A.2d 1350 (1978) (test of reasonableness is objective). Because factual determinations remained at issue, we conclude that the court properly denied the plaintiffs' motion for summary judgment, but erroneously granted Goclowski's motion for summary judgment.
The court also granted Goclowski's motion for summary judgment on the alternate ground that even if Goclowski's actions were negligent, the acts of Gregory and Geremia were, as a matter of law, superseding causes of the plaintiffs' injuries. "[T]he doctrine of superseding cause serves as a device by which one admittedly negligent party can, by identifying another's superseding conduct, exonerate himself from liability by shifting the causation element entirely elsewhere." D'Arcy v. Shugrue, 5 Conn. App. 12, 25, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985); see also Burns v. Gleason Plant Security, Inc., 10 Conn. App. 480, 484, 523 A.2d 940 (1987); 2 Restatement (Second), Torts 440-453. The doctrine of superseding cause cannot serve here as a basis for determining as a matter of law that Goclowski was relieved of liability. The doctrine must be applied to the facts of a case; D'Arcy v. Shugrue, supra, 26; and therefore involves the resolution of questions properly left to the factfinder.
Had it been permitted to decide the issue, the jury here indeed might have imposed no liability on Goclowski, finding that the acts of Gregory and Geremia were the sole proximate cause of Amendola's injuries. The jury, however, could have reached other conclusions. The jury was entitled to consider whether Goclowski breached his duty of care by failing to examine the bottle and whether this breach constituted an intervening act of negligence relieving Gregory and Geremia of liability. The jury also was entitled to consider whether the acts of all the defendants together constituted concurrent causes of the injuries. If Goclowski's negligence is deemed to have been a substantial factor in producing the minor plaintiff's injuries, he is liable for the resulting harm, notwithstanding the negligence of others. See Miranti v. Brookside Shopping Center, Inc., 159 Conn. 24, 29, 266 A.2d 370 (1969). We therefore conclude that the court erred in determining as a matter of law that the actions of Geremia and Gregory constituted superseding causes relieving Goclowski of liability.

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Jacqueline Ragan appeals the Tax Court's rulings on her motions for attorney fees and litigation expenses incurred in successfully defending claims made by the IRS which were not substantially justified. We find that the Tax Court abused its discretion in calculating some portions of Jacqueline Ragan's fees. Consequently, we AFFIRM in part and REVERSE in part, calculating the final fee award to be $52,844.59.
On April 27, 1990, the IRS sent Jacqueline Ragan (Jackie) a statutory notice of deficiency for more than $1.7 million in taxes, interest, and penalties for 1980-82. The notice also demanded that Jackie repay approximately $50,000 for an "erroneous" refund that the IRS had paid to Jackie's husband David's bankruptcy estate.
On July 30, 1990, Jackie filed a petition in the Tax Court contesting the deficiency and asserting that she was entitled to one-half of the refund. On September 29, 1992, the IRS sent Jackie and David a letter that there was "no-change" in their tax liabilities for 1980-84. It was not until approximately July of 1993, however, that the IRS Appeals Division unofficially proposed a settlement showing that Jackie was not liable for any deficiencies. Further, this settlement was not official until October 8, 1993, approximately two weeks before the scheduled trial.
On remand, Jackie requested additional litigation costs of over $35,000 incurred in preparing her original fee request, in addition to the approximately $155,000 sought originally for the substantive litigation work. Out of the nearly $190,000 sought on remand, the Tax Court completely denied the new $35,000 request as untimely and awarded Jackie just over $19,000 with respect to the original request. Jackie appeals once again from the Tax Court's calculation.
Normally, a party can request fees only if she substantially prevails on the amount in controversy or the most significant issue or set of issues presented.10 At that point, a party has thirty days to submit a fee request after the decision giving rise to the right to fees.11 In her final original fee request, Jackie did not request "fees for fees."12 However, the Tax Court's original assessment of Jackie's fee request awarded Jackie less than $1,800 out of nearly $155,000 requested.
The IRS claims that the "substantially prevailed" requirement only pertains to the merits of a case and not the right to fees, yet cites no authority for this proposition. At best, the IRS makes a policy argument that "fees for fees" should be requested at the time of the original fee request in order to prevent a cascading, "ad infinitum" series of fee requests, in which a party first requests fees, then later requests "fees for fees," and then later requests "fees for 'fees for fees,'" and so on.
Clearly, prior cases grant "fees for fees" when requested alongside the original fee petition.18 However, the danger of infinite, but decreasing, fee requests is more illusory than real. Attorneys have sufficient motivation to request their fees up front whenever possible. Moreover, such fees were explicitly within the scope of the remand order. Thus, we hold that under these limited circumstances Jackie's request for "fees for fees" should not have been considered untimely.
This request included a claim of 84.75 hours related to the preparation of Rose's first supplemental affidavit. The fact that Rose spent this much time on the affidavit is unrebutted, but the government claims it was an unreasonable amount of time. The actual affidavit itself was nearly 40 pages long and included over 100 pages of exhibits. This affidavit required Rose to explain in detail Rose's billing and work practices, including his method of keeping real-time contemporaneous time records, a chronology of his involvement in the case, and a response to the IRS's fee objections.
We agree that 84.75 hours is a considerable amount of time to prepare an affidavit, but the Tax Court apparently demanded some detail before determining Rose's fee award. We find, however, that approximately 15.25 of those hours related to a sanctions motion or matters pertaining solely to Jackie's husband David. Thus, we find that Jackie is only entitled to recover a reasonable fee for 69.5 hours.
In terms of Rose's hourly rate, this court has already held that an attorney is not entitled to a special factor enhancement for time spent preparing fee petitions.19 Thus, the statutory rate (adjusted for the cost of living) applies. That adjusted rate for the year in which this work was performed was $98/hour.20 Thus, the fee award for this portion amounts to $6,811.
On remand, the Tax Court's found that only 54 of Rose's claimed 140 hours for substantive work should be compensated. The rest were held to be uncompensable or labeled as excessive, duplicative, or unnecessary. The IRS concedes, however, that the Tax Court based this assessment on an erroneous review of Rose's original fee request of 231.5 hours rather than his amended fee request of 140 hours (from which Rose had removed hours which were not compensable).
On remand, and at the IRS's request, the Tax Court again interpreted 7430 to preclude an award of fees and costs to an attorney who is not authorized to practice before the Tax Court, claiming that 7430(c) (3) defines attorney fees as "fees for the services of an individual . . . who is authorized to practice before the Tax Court."
The actual language of 7430(c) (3), however, only states that fees for an individual who is authorized to practice before the Tax Court shall be considered attorney fees whether or not that individual is an attorney. But the language in no way limits attorney fees to those who are authorized to practice before the Tax Court. Instead, the language is plainly worded to merely ensure than non-attorneys who are admitted to practice before the Tax Court also get compensated as attorneys.
The Tax Court's determination that only 54 of Rose's hours are reimbursable is thus clearly erroneous because it looked at the wrong fee request and because it misinterpreted 7340. On appeal, the IRS has finally dropped its erroneous interpretation of 7430, but still claims that the Tax Court's finding of 54 hours should be affirmed simply because Rose's claimed 140 hours are excessive.
The Tax Court held that Rose expended only 1 hour on the refund issue on which this court specifically directed the Tax Court to award fees.22 Rose's uncontradicted affidavit shows he expended 14.5 hours. The IRS claims these hours were wasted, but in fact they represented an effort to eliminate the refund issue in this case by involving the Bankruptcy Court. This effort was eventually abandoned by Rose, but that does not mean it was an unreasonable attempt to resolve an issue which the IRS pressed without substantial justification. It makes little sense for the IRS to complain that a taxpayer ran in circles trying to defend against the IRS's unjustified demands.
Rose's affidavit also shows he expended 41.75 hours on reviewing case law associated with Jackie's case which was related to the tax aspects of government securities and commodities trading. Rose did this in order to predict the IRS's potential arguments. The IRS claims, incredibly, that Rose should have called up the Commissioner in order to find outwhat arguments the Commissioner was planning to advance.
Rose also expended 66 hours preparing a summary judgment motion that ultimately could not be finished because of a conflict between the application of tax law and securities law. In Rousseau v. United States,23 a district court denied compensation for an unfiled summary judgment motion. However in this case, unlike in Rousseau, it was shown that Rose's work on the summary judgment motion was not wasted but was in fact necessary work as part of general trial preparation, since the preparation of the summary judgment motion organized the theories and evidence of the case with respect to the applicable tax law. Thus, we cannot say that the time was fruitless.
Rose also expended 8.75 hours on general trial preparation in 1993, which the government claims is impossible because "no dispute existed in 1993 as to issues on which the Commissioner lacked substantial justification." However, although the Ragans were informed that such disputes might be resolved as early as 1992, the actual settlement of those disputes did not occur officially until October 8, 1993, approximately two weeks before the scheduled trial. Thus, it is hard to say that Rose should not have spent any time preparing for a trial in 1993, when trial was not avoided until two weeks prior.
Finally, Rose accounted for an additional 9 hours of miscellaneous time related to Jackie's case. Thus Rose's accounting shows that his requested time either applied to the refund issue - which this court held was compensable - or to the commodities and government securities trading issues on which Jackie substantially prevailed. Moreover, the IRS never objected to Rose's time entries before. For these reasons, we find it reasonable to credit all 140 of Rose's claimed substantive hours.
Rose had extensive background experience in the field of securities and commodities law, having spent 27 years in and around the securities industries both before and after law school. His expertise is apparently possessed by fewer than 100 attorneys in the country. According to Rose, only someone familiar with actual industry practice would able to demonstrate the conflicts between the IRS's theories of securities law and the actual application of the law in the real world.
Based on our review of the record, however, we are not persuaded that Rose'sspecial expertise went sufficiently beyond specialized legal knowledge that the Tax Court's denial was an abuse of discretion. Admittedly, business and law are inextricably combined, especially in the field of securities and commodities regulations, and we do not hold that knowledge or expertise in business may never be a basis for a special factor.
Jackie also received a real benefit from Rose because he was intimately familiar with David's trading practices from his prior work on the case. Such accumulated case knowledge may have created a windfall for Jackie for which Rose would like to charge, but we hold that it also does not support an enhanced fee award for Rose's time, despite the fact that no other attorney possessed that accumulated knowledge.
In sum, we award Jackie $12,880 for Rose's substantive work, $6,811 for his fees for fees, and $75.65 for his expenses,29 totaling $19,766.65.
McEvoy & Co. claimed over $70,000 in fees not counting expenses. The Tax Court allowed just over $10,000. The Tax Court decided that many of McEvoy & Co.'s hours were expended on David's litigation and not Jackie's. Jackie concedes that, but argues that she should get half of McEvoy & Co.'s requested fees, regardless.
Jackie claims that much of McEvoy & Co.'s work was done on behalf of both Jackie and David, despite references only to David. However, McEvoy & Co. previously tried to recover the fees for all of these disputed hours from David's bankruptcy estate, although McEvoy & Co. was unsuccessful. Jackie now wants to reclaim those hours. The Tax Court decided, however, that McEvoy & Co.'s original hourly bills to David's bankruptcy estate affirmatively represented that those hours were done on behalf of David only. Thus, such representations estopped McEvoy & Co. from asserting otherwise to the Tax Court.
We do not believe that such "double billing" by itself necessarily would preclude Jackie from attempting to recover fees charged by McEvoy & Co. For example, if McEvoy & Co.'s contract with David and Jackie allowed McEvoy & Co. to recover payment from either David or Jackie or both, such "double billing" would simply have no relevance in determining whether those hours were performed on behalf of David instead of Jackie. In other words, there are two distinct issues: who was liable for the bill versus who received the services. But even if McEvoy & Co. could recover all of its fees from either Jackie or David, that does not mean that all of thework was performed on both Jackie and David's behalf.
According to McEvoy's affidavit, his company's billing codes unfortunately do not correlate with whether the work was done exclusively for the person listed. Nevertheless, it does not seem to be an abuse of discretion to require an accounting firm to code its work accurately, and if it does not do so, to use such codes as best estimates. To hold otherwise simply encourages sloppy billing practices and facilitates the practice of claiming that work done for one account was actually work done for another.
While we are sympathetic to the claim that such an accounting underrepresents the amount of work performed on Jackie's behalf, we will not require the Tax Court to delve deeply behind the billing codes in order to determine what work was done for whom. Thus, we find that Jackie may only claim those hours coded to her and half of those hours billed jointly to her and her husband, as determined by the Tax Court.
McEvoy & Co. requested fees for preparing their fee request.34 All told, McEvoy & Co. claimed just over $10,000 in such fees.35 While these fees nearly equal the fees awarded for McEvoy & Co.'s substantive work, we cannot say that they are unreasonable, given the complexity of the case and the uncertainty surrounding what portion of McEvoy & Co.'s time that the Tax Court would finally credit. On the one hand, it was not an abuse of discretion for the Tax Court to refuse to look behind McEvoy & Co.'s billing codes, but on the other hand, we do not think it was unreasonable for McEvoy & Co. to attempt to overcome their code deficiencies by preparing an elaborate fee request. Thus, we award $10,302.50 in fees for fees. In sum, we award $21,699 to Jackie for McEvoy & Co.'s fees, not yet counting the expenses addressed below.
The Tax Court labeled some of McEvoy & Co.'s expenses as overhead and therefore decided the expenses were not compensable. McEvoy charged $8,817.79 for the computer storage of the Ragans' financial records as well as $10,715.00 in rent,which included physical storage of the Ragans' documents, as well as office rent for David Ragan and Bruce Rose, when they were in Houston working on the case.
The Tax Court stated that these expenses were not reasonable expenses for an expert. From the early 1980s through the early 1990s, computer memory was not nearly as cheap as it was a few years later. Thus, charging for computer storage appears to have been a reasonable charge given the numerous records that McEvoy & Co. kept on their computers. Because computer memory is scalable, it can be a direct, variable cost that is not overhead. In other words, because memory can be purchased in increments, on an as-needed basis, it is possible and reasonable to attribute memory usage to a particular client. Thus, the computer memory is a reasonable expense for an expert, since it was necessary for McEvoy's case preparations. Absent any other means for division, we find that Jackie may recover half of the computer storage fee to recover her portion of the expense, which equals $4,408.90.
Once McEvoy & Co. stored the Ragans' documents, David Ragan and Bruce Rose were required to work at that location on occasion, since a temporary transfer of those files would have been difficult and costly. McEvoy & Co. charged rent for David and Rose's office use. Again, however, there is no evidence that such a charge for office space was anything other than routine overhead as far as McEvoy & Co. was concerned; consequently, it was not compensable. Even if these charges were not considered to be overhead, they were not expenses of McEvoy & Co. in its capacity as an expert, but merely expenses in its capacity as a landlord, since the use of the office space was for the convenience of David and Rose and not McEvoy & Co. Either way, they are not reimbursable as litigation expenses of McEvoy & Co.
The Tax Court denied Jackie's request for expenses paid to Management Advisory Services (MAS). MAS provided bookkeeping services, but the Tax Court found the charge to be "unusual." MAS organized the Ragans' documents which were kept at McEvoy & Co.'s offices, which does not seem unusual, since MAS was able to perform the service better and cheaper than McEvoy & Co. could have done so. Since such organization was necessary for the preparation of David and Jackie's case, it is unreasonable to say that half of that $3,920 expense should not be awarded to Jackie as an expense of McEvoy & Co. Thus, we award $1,960 to Jackie for her portion of this expense.
The Tax Court discounted the expenses of McEvoy & Co.'s professionals by the same proportion that it discounted their requested hours. In other words, if a given individual claimed 100 hours of workand $20 in expenses, and the Tax Court found 60 compensable hours, then the Tax Court discounted the claimed expenses by 40% and awarded $12 in expenses.
The Tax Court cites no authority for discounting expenses based on its discounting of requested hours and had Jackie's accountants related particular expenses to particular hours, then it would not be reasonable to discount expenses associated with hours that were fully compensated. Absent more explicit accounting, however, we do not find that the Tax Court's method was an abuse of discretion. Thus, the Tax Court's calculation of $400 in remaining miscellaneous expenses for McEvoy & Co. stands. Thus, the total fee award with respect to McEvoy & Co. is $29,659.94.
135 F.3d 329 (5th Cir. 1998).
The issues on which Jackie had prevailed and which the IRS did not have substantial justification included: (1) Schedule F farm/horse breeding losses; (2) tax consequences of trading in government securities; and (3) tax penalties, except to the extent related to DOT and Salmonella issues.
See Ragan I, 135 F.3d at 332.
See Powers v. Commissioner, 43 F.3d 172, 179 (5th Cir. 1995).
See Vinson & Elkins v. Commissioner, 7 F.3d 1235, 1237 (5th Cir. 1993).
See Ragan I, 135 F.3d at 334.
See Tax Ct. R. 231(b).
Apparently, in her original, but not final, fee request, Jackie did request "fees for fees" for Rose, but then inexplicably, Rose removed those fees from his first supplemental affidavit, which "finalized" Jackie's original fee request.
These affidavits showed that Rose expended 84.75 hours to prepare Jackie's fee request. McEvoy & Co. claimed the following rates and time for the fee request: Chase McEvoy, 46 hours, $120/hour; Atchison, 58 hours, $65/hour; and Trevett, 22.5 hours, $45/hour. All told, McEvoy claimed approximately $10,300 in fees for fees, while Rose expended 84.75 hours. Jackie incurred an additional $1,192.04, primarily in copying costs, associated with these fee requests.
See United States v. Marmolejo, 139 F.3d 528 (5th Cir.), cert. denied, 119 S. Ct. 622 (1998); United States v. Adesida, 129 F.3d 846, 849-50 (6th Cir. 1988).
See Ragan I, Appellant's Brief, n.9.
See 135 F.3d at 335.
See id. at 336 (holding that Jackie's attorney "Rose . . . dedicated time to issues in Jackie's case for which she is entitled an award of attorneys' fees, such as . . . preparing the 7340 petition." (emphasis added)).
See, e.g., Powers, 43 F.3d at 179-80.
Cf. Perales v. Casillas, 950 F.2d 1066, 1075-76 (5th Cir. 1992) (requiring that under the Equal Access to Justice Act, a statutory fee award must be based on the statutory rate of the year in which services were rendered so as to avoid an impermissible interest charge against the United States).
See Ragan I, 135 F.3d at 336-37.
Civ. A. No. 90-2333, 1991 WL 136992 (E.D. La. July 12, 1991).
Not only is $250/hour well above the statutory cap, it is also in excess of Rose's typical $200/hour rate.
28 U.S.C. 2412(d) (2) (A) (ii).
See Perales, 950 F.2d at 1078.
See Brief of Appellants, at 35 (emphasis added).
Initially, the Tax Court discounted these expenses because Rose did not recover all of his claimed hours. Since our award credits all of Rose's hours, his expenses need not be discounted.
In its supplemental affidavit, McEvoy claimed the following fees: Chase McEvoy, 515.9 hours at $120/hour; Thayer, 22.8 hours at $101/hour; Prestwood, 26.5 hours at $75/hour; Atchison, 186 hours at $30/hour; Trevett, 69.8 hours at $20/hour; Dang, 7.5 hours at $20/hour. The Tax Court allowed $10,295: Chase McEvoy, 50.75 hours; Thayer, 13.5 hours; Prestwood, 20 hours (all at $92/hour); Atchison, 82 hours at $30/hour; Trevett, 4.2 hours at $20/hour; Dang, 0 hours.
The Tax Court also determined which billing codes signaled work done for David versus Jackie with respect to McEvoy employees Thayer and Prestwood.
The IRS claims that Jackie has waived this issue because the Tax Court used $92/hour in its original calculation, and Jackie did not specifically contest that rate in the first appeal. Cf., e.g., United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996). However, in her first appeal, Jackie successfully contested the Tax Court's refusal to consider McEvoy & Co.'s fees as litigation costs and this court specifically remanded for those fees to be recalculated as litigation costs. See Ragan I, 135 F.3d at 336-37. Thus, because Jackie prevailed on the broad issue in her first appeal, we find that the narrower issue was within the scope of remand and was not waived.
The breakdown is as follows: McEvoy: 50.75 hours at $120/hour = $6,090; Thayer: 12.5 hours at $101/hour = $1,262.50; Prestwood: 20 hours at $75/hour = $1,500; Atchison: 82 hours at $30/hour = $2,460; Trevett: 4.2 hours at $20/hours = $84.
The specifics of the request were as follows: Chase McEvoy: 46 hours at $120/hour; Atchison: 58 hours at $65/hour; and Trevett: 22.5 hours at $45/hour.
See Kuzma v. IRS, 821 F.2d 930, 933-34 (2d Cir. 1987).
We also find that consideration of MAS's fees was within the scope of remand and this appeal because this court previously reversed the trial court's entire calculation of the fees associated with McEvoy & Co.
Jackie did not challenge the award for Redding's services and therefore it remains the same as determined by the Tax Court.
Jackie does not contest the award for Mulder's services, except with regard to his claimed expenses. We find no error with the Tax Court's assessment of $75 in expenses for Mulder. Mulder claimed expenses of $100.36, but these were properly reduced because he was unable to state with any degree of certainty whether certain expenses were related to Jackie's case.

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RONALD PROSSER, Appellee, v. THE VILLAGE OF FOX LAKE et al., Appellants.
Opinion filed June 18, 1982.
*391 Soffietti, Johnson & Teegen, Ltd., of Fox Lake (Howard R. Teegen, of counsel), for appellants.
Brydges, Riseborough, Morris, Franke & Miller, of Waukegan (D. Richard Joslyn, of counsel), for appellee.
The plaintiff, Ronald Prosser, a trustee of the village of Fox Lake, brought an action against the village and several of the trustees and officers of the village for a permanent injunction against the operation of two ordinances that he claimed were passed in violation of section *392 3-11-17 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 3-11-17). Section 3-11-17 requires "the concurrence of a majority of all members then holding office" on a village's board of trustees for the passage of an ordinance. The issue for our review is whether the failure of an elected trustee, who serves also as the acting village president, to vote on a proposed ordinance during a meeting of the trustees at which he was present constitutes concurrence in the action taken by the majority of those voting.
Ordinance No. 79-5 established the office of village president as a full-time position. Ordinance No. 79-6 set the annual salary of the village president at $22,000 and fixed the compensation of village trustees at $75 for each regular meeting attended and $50 for each special meeting attended. At a meeting of the village's board of trustees on April 16, 1979, roll-call votes were taken on the proposed ordinances. Five of the village's six trustees, including the acting president, were present. The recorded minutes of the meeting show that trustees Kiesgen, Berdnick, and Krueger voted "aye" on each proposal; trustee Misiek voted "nay" on each; trustee Prosser was absent; and trustee Hamm, who was the acting village president, did not vote. The record shows that Hamm did not vote on the advice of the village attorney that his vote was not necessary for passage. Both ordinances were designated "approved," signed by Hamm as acting president, attested to by the village clerk, and published within the 30-day period prescribed by section 1-2-4 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 1-2-4).
The plaintiff sought to enjoin enforcement of the ordinances on the ground that the three "aye" votes did not constitute "the concurrence of a majority" of the six board members. (Trustee Hamm was legally qualified to serve as acting village president, but under section *393 3-11-14 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 3-11-14) he was prohibited from voting in both of his capacities, i.e., as trustee and as acting president.) The plaintiff and the defendants filed motions for summary judgment. The circuit court of Lake County, interpreting the acting president's signing of the ordinances as a "concurrence" within the meaning of section 3-11-17, entered summary judgment in favor of the defendants. The appellate court, with one justice dissenting, reversed and entered summary judgment in favor of the plaintiff (94 Ill. App.3d 78). We granted the defendants' petition for leave to appeal. 73 Ill.2d R. 315.
We would note that many of the provisions of the Illinois Municipal Code make reference to "city council" and "mayor." Those provisions are applicable also to village government, since section 3-12-5 (Ill. Rev. Stat. 1979, ch. 24, par. 3-12-5) provides that a village's board of trustees, consisting of the president and the trustees, "shall pass ordinances, resolutions, and motions in the same manner as a city council." See also Ill. Rev. Stat. 1979, ch. 24, pars. 3-12-2, 3-12-3.
Though the legislative body of a municipality may determine its own rules of procedure in the adoption of ordinances (Ill. Rev. Stat. 1979, ch. 24, par. 3-11-11), the record does not show that the village of Fox Lake had done so. The proceeding here was governed by the pertinent statutory provisions.
Section 3-11-17 states that "[t]he yeas and nays shall be taken upon the question of the passage of the designated ordinances, resolutions, or motions and recorded in the journal of the city council." (Ill. Rev. Stat. 1979, ch. 24, par. 3-11-17.) The statute provides for the taking of only two types of votes "yeas" and "nays." Thus, an attempt to vote other than "yea" ("aye") or "nay," for example "abstain" or "present," is not deemed to be a vote. See Launtz v. People ex rel. Sullivan (1885), *394 113 Ill. 137.
If a quorum is present, municipal legislators cannot avoid their voting responsibilities by refusing to vote when present at a meeting. (See Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137; see also People ex rel. Anderson v. Chicago & North Western Ry. Co. (1947), 396 Ill. 466.) A legal significance or effect must be given to each failure to vote by a municipal legislator who is present at a board meeting in order to prevent frustration or abuse of the legislative process. (State ex rel. Young v. Yates (1897), 19 Mont. 239, 47 P. 1004.) He should not be allowed to have his physical presence counted toward the constitution of a quorum and at the same time be allowed to deny, in effect, his official presence by a failure to vote. Thus, a municipal legislator's failure to vote either "yea" or "nay" on a proposed ordinance must be interpreted to have the same effect as either a "yea" or a "nay" vote.
Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137, involved a city council's vote on a motion to approve the city treasurer's bond. Four aldermen voted in favor of the motion and the remaining four refused to vote. The mayor also voted in favor of the motion and declared that the motion had carried. This court did not invoke the common law rule that a failure to vote constitutes acquiescence with the majority of those voting. Instead it said that the motion has passed regardless of whether the four refusals to vote were considered as "yeas" or "nays." If considered to be "yeas," the motion carried eight votes to none. If the refusals to vote were considered to be "nays," the aldermen were deadlocked at four votes in favor and four votes against. In that event, the mayor was entitled to cast his "yea" vote and the motion carried. It is to be observed that while the court did not decide whether the refusals to vote were to be deemed "yeas" or "nays," it is clear that it judged that the refusal to *395 vote was not to be considered of no significance. The court's reasoning shows that it deemed that the refusal to vote was to have a legal effect on the balloting.
The effect of voting to "abstain," or to "pass," or voting "present" or of refusing to vote when present at a meeting depends on whether "the affirmative vote" of a majority or "the concurrence" of a majority, of either the quorum or of all members then holding office, is required for passage. If "the affirmative vote" of a majority of either standard is required (e.g., Ill. Rev. Stat. 1979, ch. 24, par. 11-74-6), then nothing less than a majority of "yea" or "aye" votes will result in passage. An attempt to vote to "abstain" or in any manner other than "yea" or "nay," or a failure to vote shall be considered to have the effect of a "nay" vote. Where the "concurrence" of a majority is required for passage, the holding in most of the jurisdictions where the issue has been considered is that a vote of "pass," "present," or "abstain" or a failure to vote when present constitutes an acquiescence or concurrence with the members of the majority who did vote on the question involved. This is described in The Law of Local Government Operations: "It is a general rule that those members present at a meeting consisting of a quorum must vote against a proposal in order to defeat it. If members are present and refuse to vote, they are deemed to have consented to the majority decision." (Rhyne, The Law of Local Government Operations sec. 5.6, at 77 (1980). (See also Annot., 63 A.L.R.3d 1072, 1083 (1975); Froehlich, Effect of Council Members Voting "Abstain," "Pass," or "Present," 59 Ill. Municipal Rev. 15 (June 1980).) This holding of a majority of jurisdictions developed from the common law rule pertaining to elections announced in Rex v. Foxcroft (1760), 2 Burr. 1017, 1021, 97 Eng. Rep. 683, 685: "Whenever electors are present, and do not vote at all (as they have done here,) `they virtually acquiesce in the election made by those who do.'"
*396 Hamm's failure to vote as a trustee operated as a concurrence with the approving votes of the three trustees, i.e., Kiesgen, Berdnick, and Krueger, who constituted a majority of the trustees who actually voted. Trustee Misiek voted against the ordinances. Thus, ordinances 79-5 and 79-6 were passed by a margin of four to one. See Annot., 63 A.L.R.3d 1072, 1083 (1975); Froehlich, Effect of Council Members Voting "Abstain," "Pass," or "Present," 59 Ill. Municipal Rev. 15 (June 1980).
The plaintiff contends that even if Hamm's failure to vote is considered as a concurrence with the majority, the ordinances are invalid, since no vote was recorded for Hamm as section 3-11-17 of the Illinois Municipal Code requires. There is no merit in this. Under the circumstances, the village clerk could not reasonably be expected to describe the conduct of Hamm other than as a failure to vote. It was only after prolonged litigation that it has been determined that Hamm's inaction or failure to vote should be given the effect of a "yea" vote.
For the reasons given, the judgment of the appellate court is reversed. The judgment of the circuit court of Lake County is affirmed.
Section 3-11-17 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 3-11-17) requires "the concurrence of a majority of all members then holding office" before an ordinance may be passed by a village board of trustees. The two ordinances in issue received only three "aye" votes not a majority of the six-member board. One member voted against the measures; one, Richard Hamm, did not vote because the measures concerned his salary; and one member was absent. Unlike the majority, I am forced to conclude that the ordinances did not pass.
*397 The majority contends that trustee Hamm's failure to vote can be counted with the "aye" votes so that the ordinances did have the concurrence of four members necessary for passage. In arriving at this peculiar rule, it relies on what it calls the common law rule of Rex v. Foxcroft (1760), 2 Burr. 1017, 1021, 97 Eng. Rep. 683, 685 (also known as Oldknow v. Wainwright), in which Lord Mansfield stated in a one-line opinion that "[w]henever electors are present, and do not vote at all (as they have done here,) `they virtually acquiesce in the election made by those who do.'" The majority states that this is the appropriate rule to apply when a statute requires "the concurrence" of a majority of all members as opposed to the "affirmative vote" of such a majority, and that under that rule, Hamm's abstention would be counted with the "aye" votes.
The majority's reliance on Rex v. Foxcroft is misplaced. That case had little to do with the issues presented here. First, I believe the majority's interpretation of what Lord Mansfield said is incorrect. Second, even if the majority is correct in its interpretation of his statement, to take such a hoary case out of its common law context and apply it to this case in which a special rule for the passage of ordinances is given in the Illinois Municipal Code is error. Admittedly, there are a few cases that seem to support the majority's interpretation of the rule in Rex v. Foxcroft and its application to cases like the one presented here. (See, e.g., State ex rel. Young v. Yates (1897), 19 Mont. 239, 47 P. 1004 (dictum); Northwestern Bell Telephone Co. v. Board of Commissioners (N.D. 1973), 211 N.W.2d 399 (relying on Babyak and Yates, not Rex v. Foxcroft); Babyak v. Alten (1958), 106 Ohio App. 191, 154 N.E.2d 14 (dictum and probably overruled sub silentio in Davis v. City of Willoughby (1962), 173 Ohio St. 338, 182 N.E.2d 552).) The weight of authority appears, however, to be against the application of any such *398 rule to cases involving statutes which require the agreement of the majority of the total membership (see, e.g., Mann v. Key (Ala. 1977), 345 So. 2d 293; State ex rel. Deal v. Alexander (1899), 107 Iowa 177, 77 N.W. 841; Ram Development Co. v. Shaw (Minn. 1976), 244 N.W.2d 110; Caffey v. Veale (1944), 193 Okla. 444, 145 P.2d 961; State ex rel. Rea v. Etheridge (Tex. Com. App. 1930), 32 S.W.2d 828), even when the statute requires a "concurrence." See, e.g., Reese v. State ex rel. Carswell (1913), 184 Ala. 36, 62 So. 847; Van Hovenberg v. Holeman (1940), 201 Ark. 370, 144 S.W.2d 718; Steers Sand & Gravel Corp. v. Village Board (N.Y. Sup. Ct. 1954), 129 N.Y.S.2d 403; Davis v. City of Willoughby (1962), 173 Ohio St. 338, 182 N.E.2d 552; State ex rel. Roberts v. Gruber (1962), 231 Or. 494, 500, 373 P.2d 657, 660 (condemning Babyak and State ex rel. Young v. Yates as an unwarranted extension of Rex v. Foxcroft).
Rex v. Foxcroft involved the appointment of the town clerk of Nottingham by the mayor, aldermen, and common council. Of the 25 electors 21 were present at the meeting. Of those present, nine voted for Thomas Seagrave, and 12 refused to vote entirely on the ground that the position was already occupied. In my view, the case stands for several propositions. First, the common law requirement for action by such a body is the agreement of a majority of those present and voting, and not a majority of those present. Next, the failure of abstainers to speak will not be construed as a "no" vote, even if their views on the election were clear. Finally, nonvoting members of the body may be counted in establishing the presence of a quorum without otherwise affecting the vote. In his characteristic style, Lord Mansfield rationalized his rule by saying that such members "virtually acquiesce" in the election made by those who do vote. Rex v. Foxcroft (1760), 2 Burr. 1017, 1021, 97 Eng. Rep. 683, 685.
My colleagues apparently interpret Lord Mansfield's *399 statement to mean that while a majority of those present is necessary for a parliamentary body to take action, those who are present but do not vote are deemed to acquiesce, so that the requisite majority is achieved. This is a distortion, though not an original one, of what Lord Mansfield said. He did not say abstainers support the position of the majority so as to add to the majority; he said they accept the action taken by the entire body. They had a vote and they did not use it. The election was complete without their participation because only a majority of those present and voting is required.
In most situations the majority's misinterpretation of the Foxcroft rule would cause no mischief. If the common law requirement of a majority of those present and voting is what should be applied and instead a court applies a rule that a majority of those present is necessary but abstainers will be counted with the majority, the result reached would still be the same. But even assuming the majority's loose definition of the Foxcroft rule is correct, it has no place in a case in which a strict statutory requirement for the passage of legislation, namely a concurrence by a majority of those currently holding office, must be followed instead of the usual common law rule. The rule the majority applies is not so obvious or commonly known that one would expect the legislature to have been aware of it. In fact, as noted above, most cases do not apply such a rule to statutes like the one we have before us. As such, it is unlikely the legislature intended it to cover the situation. To apply it here, where the requirements for passage were purposely made stricter than the common law, would emasculate the special rule for ordinances that the legislature saw fit to impose. The statute would be avoided by the use of a legal fiction.
The majority does not recognize the distinction between cases involving the common law requirement for the passage of legislation and those involving a statutory requirement like that of the Illinois Municipal Code. Indeed, in marshaling *400 support for its judgment, it cites an A.L.R. annotation on the subject (Annot., 63 A.L.R.3d 1072 (1975)), but rather than citing to the section of the annotation dealing with cases in which the requirement for passage was a majority of the total membership, it cites to the page of the section that discusses cases in which the common law requirement applied. The former section of the annotation cites many more cases against the majority's position than for it. The majority also cites Rhyne, Law of Local Government Operations sec. 5.6, at 77 (1980), as authority to apply the rule it advocates to the present case. Yet, taken in its proper context, Rhyne's statement is no such authority. None of the cases cited by Rhyne deal with a statutory imposition that a majority of the legislative body's membership agree. All concern a lesser requirement for passage. One such case, Mann v. Housing Authority (1952), 20 N.J. Super. 276, 279, 89 A.2d 725, 727, holds that the rule my colleagues advocate applies only where "no specified number of votes is required, but the majority of a board regularly convened is entitled to act." Since the statute the court in Mann was construing required at least three votes for passage of any legislation, the rule the majority here advances was not applied. The majority also supports its judgment with Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137. That case too concerns only a common law requirement for the passage of the legislation and not a strict statutory requirement that a majority of the legislative body's membership agree.
The majority apparently recognizes, however, that applying its peculiar interpretation of the rule of Rex v. Foxcroft to all cases in which a statute requires the agreement of a majority of the body's membership to pass legislation could do serious harm to the legislative intent. Such a rule greatly lessens the effect of such rules. The majority therefore makes a distinction between statutes that require the "concurrence" of such a majority and those that require the *401 "affirmative vote." The latter, it states, is the stricter requirement and does not allow for the fiction contained in Lord Mansfield's dictum; the former, it contends, is a looser standard for which an abstention may be treated as a vote with the majority. This distinction is made despite the fact that Rex v. Foxcroft itself suggests no such distinction.
I do not agree that the word "concurrence" in the context of the Illinois Municipal Code is subject to such an interpretation. In Blakemore v. Brown (1920), 142 Ark. 293, 297, 219 S.W. 311, 312, the Supreme Court of Arkansas stated that "[t]he use of the word `concurring' necessarily implied consent, evidenced in some overt way, and not a mere silent acquiescence or submission." (Accord, Dillon v. Scofield (1881), 11 Neb. 419, 9 N.W. 554; State v. Vermont Emergency Board (1978), 136 Vt. 506, 394 A.2d 1360.) In Eubanks v. State (1911), 5 Okla. Crim. 325, 333, 114 P. 748, 752, the Criminal Court of Appeals of Oklahoma held that the words "concurrence" and "concurring" within the context of the State constitution and grand jury statute "mean `assent,' or `consent,' indicated by affirmative action on the part of the grand juror, by vote or ballot, showing direct approval." Perhaps most important, however, is Davis v. City of Willoughby (1962), 173 Ohio St. 338, 182 N.E.2d 552, a case not unlike the one at bar, involving the treatment of an abstention in a city council vote. Citing Dillon and Blackmore, the court found the word "concur," in the context of the Ohio statute requiring three-quarters of the members of the council to concur before certain public improvements could be made, to mean an actual vote for the proposition and not mere silent submission. (173 Ohio St. 338, 344, 182 N.E.2d 552, 556.) These cases solidly reject the majority's contention, and I think they are supported by logic and good sense.
Rules of parliamentary procedure tend to be rigid and formalistic. There is an excellent reason for this: Little room exists for judgment calls when it comes to determining *402 whether or not a particular item of legislation has been passed or not; the law must be clear. I find it incredible to believe that our legislature would deliberately throw a wrench into the workings of our local legislative bodies by drafting a rule for the passage of ordinances that would inevitably lead to conflicts over whether a concurrence of the requisite majority had been achieved. If an abstention can be construed as a concurrence, think what other actions could also be so construed like not showing up for the meeting at all. Perhaps no formal vote need even be taken. As soon as a majority of the members clearly appear to be like-minded, should the bill pass? Such rules would obviously lead to legislative chaos.
Interestingly, the Illinois Constitution of 1970 uses the word "concurrence" often in describing requirements for various bodies in reaching decision. For example, the "concurrence" of four justices of the supreme court is necessary for a decision. (Ill. Const. 1970, art. VI, sec. 3.) During my tenure here, however, no one has ever suggested that an abstention should be counted with the majority, although there have been cases in which such a rule would have been decisive in preliminary vote taking. Four "yes" votes have always been thought to be required. Similar provisions appear in other parts of the Constitution. Ill. Const. 1970, art. IV, sec. 8(c) (the legislature), arts. VI, sec. 15(f) (the Courts Commission).
I think that the application of the rule the majority has derived from Rex v. Foxcroft to the situation at bar cannot be justified by interpreting the words "concurrence of a majority" to mean something less than the affirmative votes of a majority. The two cannot be treated differently. The issue must therefore be whether their rule can be applied to any case in which a statute requires a majority of the legislature's total membership either to agree, concur or affirmatively vote in order to pass legislation. As stated above, the weight of authority is clearly against its application. (See, *403 e.g., Van Hovenberg v. Holeman (1940), 201 Ark. 370, 144 S.W.2d 718; Van Cleve v. Wallace (1944), 216 Minn. 500, 13 N.W.2d 467; Ezell v. City of Pascagoula (Miss. 1970), 240 So. 2d 700; Rockland Woods, Inc. v. Incorporated Village of Suffern (1973), 40 App. Div.2d 385, 340 N.Y.S.2d 513; Steers Sand & Gravel Corp. v. Village Board (N.Y. Sup. Ct. 1954), 129 N.Y.S.2d 403; Davis v. City of Willoughby (1962), 173 Ohio St. 338, 182 N.E.2d 552; Caffey v. Veale (1944), 193 Okla. 444, 145 P.2d 961; State ex rel. Roberts v. Gruber (1962), 231 Or. 494, 373 P.2d 657.) To follow these cases and reject the use of a legal fiction to achieve the necessary consensus would, I believe, be in harmony with the purpose of the statute to ensure that before ordinances are passed by a village board of trustees there is clear and express approval of the measure. (See Rockland Woods, Inc. v. Incorporated Village of Suffern (1973), 40 App. Div.2d 385, 340 N.Y.S.2d 513.) The statute is designed to prevent passage of ordinances on a whim or when a majority of the whole number is unwilling to stand up and be counted as supporters of the measure.
That is exactly what the majority has done here.
I would affirm the appellate court's judgment.
JUSTICE CLARK joins in this dissent.

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