Hunting season is already underway, but it’s not too late to protect yourself with the proper insurance and contractual protections. Whether you are a landowner or a hunter who leases land, you take on some legal risk. This article focuses on guidance under Indiana law for landowners, but many of the same tips carryover to other state’s laws, as well as hunters. You should always consult an attorney for advice that addresses your specific situation.
When charging a hunter a fee for access, you take on responsibilities that could result in liability. Understanding your risk requires consideration of your state’s law on premises liability in the context of any statutory protections for outdoor recreational use or agritourism. You can receive the benefits of leasing and minimize your risks by following good business practices, buying an appropriate insurance policy (or having your lessee buy one), and drafting a clear contract with the right protections.
Part 1 of this series summarizes potential liability under general premises law. Part 2 analyzes protection extended to landowners who open their property for recreational uses, and, in Indiana, providers of agritourism. Part 3 examines best business practices to limit liability, including maintaining good records, organizing your business as a corporation, and passing on risk with insurance. Finally, Parts 4 and 5 raise questions you should consider before meeting with an attorney to draft your lease agreement.
Under traditional premises liability rules followed by the majority of states, your duties (and potential liability) as a landowner depend upon your relationship with those persons who come on your property. The status of a person who enters the land of another is characterized as a trespasser, a licensee, or an invitee.
Indiana landowners generally owe trespassers, persons who enter or remain on land without the landowner’s actual or implied consent, the minimal duty of refraining from willfully or wantonly injuring the trespasser after having discovered his presence.
Licensees are persons privileged to enter or remain on the land by the landowner’s permission or sufferance. A landowner assumes responsibility to warn a licensee of any dangerous conditions on the premises of which the landowner has knowledge. The landowner also owes the duty to refrain from willfully or wantonly injuring a licensee or acting in a manner to increase his peril. If you give someone permission to hunt your land without charge, a court in Indiana will likely consider that hunter a licensee. But if you charge that hunter some kind of “monetary consideration,” the court likely will consider that hunter a business invitee owed a higher duty of care. “Monetary consideration” is described further in Part 2 of this series.
An Indiana landowner owes the highest duty of care to an invitee: the duty to exercise reasonable care for the invitee’s protection while he is on the premises. This means the landowner assumes responsibility to ensure the premises are in a reasonably safe condition for the invited uses. A landowner, however, generally is not required to eliminate natural conditions such as streams, ravines, or trees. The duty also requires that the landowner periodically inspect land encompassed by an invitation for concealed dangers and warn invitees of the discovered dangers. In Indiana, an invitee may be one of several types: a social guest, a business invitee, and a public invitee. A public invitee is invited to enter or remain on land as a member of the public for a purpose which the land is held open to the public.
To encourage landowners to open their property for recreational uses, most states, including Indiana, provide statutory protection from some liability. It’s still recommended to consult an attorney, however, because you still may be brought to court and need to defend yourself. As explained later in this article, legal advice now in business formation, drafting a lease, and procuring the right policy can help you avoid future headaches.
Under Indiana’s Recreational Use Statute, a person who goes upon or through the premises of another either for the purpose of swimming, camping, hiking, sightseeing or for the purpose of hunting, fishing, trapping, or preparing to hunt, fish, or trap, does not have an assurance that the premises are safe for that purpose. See Ind. Code §§ 14-22-10-2(d), 2.5(a). It does not matter whether that person has permission or is a trespasser. Id. In other words, the Recreational Use Statute modifies the traditional premises liability rules discussed in Part 1 so that a landowner’s duty of care is limited to that owed to trespassers. Correspondingly, the landowner does not assume responsibility to ensure the premises are safe for use or to warn of any dangerous conditions. Ind. Code §§ 14-22-10-2(e), 2.5(b).
A landowner should be aware of common exceptions under recreational use statutes. For example, under Indiana’s statute, the protection applies only if the landowner directly or indirectly invites others to use the land for recreational purposes without “monetary consideration.” “Monetary consideration” means a fee or other charge for permission. Ind. Code § 14-22-10-2(b). It does not apply to: (1) the gratuitous sharing of game, fish, or other products of the recreational use of the land; (2) services rendered for the purpose of wildlife management; or (3) in-kind contributions made for the purpose of wildlife management. Thus, if a landowner were to charge a user a fee (through a hunting lease, for example), the landowner would then owe the higher degree of care owed to business invitees. This means, for example, that a landowner might be liable for resulting injuries if a hunter stepped in a large hole on the property and broke his leg or accidentally discharged his gun.
Indiana’s Recreational Use Statute also does not provide a landowner immunity from an injury to a person or property caused by an intentional, willful, or malicious or an illegal act of the owner or occupant. Ind. Code §§ 14-22-10-2(g), 2.5(d). Nor does it affect existing Indiana case law on the liability of landowners with respect to business invitees in commercial establishments or the attractive nuisance doctrine (having an artificial condition on your property that is likely to attract child trespassers). Ind. Code §§ 14‑22‑10‑2(f), 2.5(c).
Indiana’s Agritourism Statute, Ind. Code § 34-31-9 et seq., passed in 2011, may provide greater protection than the Recreational Use Statute. “Agritourism” is broadly defined to include self-pick farms, farmers markets, and agricultural fairs. It also applies to “natural resource based activities and attractions, including hunting, fishing, hiking, and trail riding.” Ind. Code § 34-31-9-2.
Under the Agritourism Statute, an “agritourism provider” is not liable for (1) an injury to a participant or (2) the death of a participant when such injury or death results from an “inherent risk” of agritourism activities. Ind. Code § 34-31-9-10. An “agritourism provider” means a person who provides the opportunity for agritourism activities whether or not the participant pays to participate in the activity. Ind. Code § 34-31-9-3. “Inherent risks” of agritourism activities include those conditions, dangers, or hazards that are an “integral part” of the activity, including risk inherent to land, equipment, and animals. “Inherent risks” also include the likelihood participants may act negligently by failing to follow instructions or failing to obey written warnings or postings. Ind. Code § 34-31-9-4.
Providers who receive monetary consideration from participants also may obtain the Agritourism Statute’s protection. But in order to qualify for the protection, such providers must post warning signs and obtain signed releases from the participants that include the warning notice. Ind. Code § 34‑31‑9‑12. Any written contracts must also have a copy of the written notice. Ind. Code § 34-31-9-13.
Indiana’s Agritourism Statute does not offer an agritourism provider immunity from injury or death of a participant caused by an act or omission that constitutes a willful or wanton disregard for the safety of the participant or an intent to injure. Ind. Code § 34‑31‑9-11. Nor does it affect existing Indiana case law on a landowner’s duty to warn an invitee of any dangerous conditions on the land, facilities, or equipment, or dangerous propensity of a particular animal, of which the landowner has knowledge. Id.
These statutes serve as an affirmative defense to personal injury lawsuits. You still may need to defend yourself in court. There are extra steps you can take in advance, however, to strengthen your case and limit the costs of a lawsuit. These steps will be addressed in Parts 3, 4, and 5 of this article.
It is very important to keep accurate records, especially of efforts to reduce risks. Before leasing your property for monetary consideration, inspect your property and identify hazards. Examples of hazards include abandoned wells and high-risk trees that might fall. Notify your invitees and licensees of known hazards in writing and provide maps showing hazard areas. Document your steps and make copies of any documents you hand out. Ask to see hunting licenses and any safety education certifications and make a copy.
Consider whether you would like to add a layer of protection for your personal assets by creating an S-Corp or LLC for the purpose of handling leases. If you plan to operate the company with another individual, contact an attorney to help you draft bylaws or an operating agreement.
When shopping for a liability policy, ask if the policy includes bodily injury or property damage resulting from the use of tree stands, vehicles, and firearms. Also check that the definition of “premises” includes the land to be leased for hunting purposes. Importantly, make sure that the insurer has a duty to defend you (i.e., at least pay your legal fees and expenses) if you are sued.
Using an old junker or ATV as part of your hunting activities? The standard automobile insurance policy is limited to liability arising from injuries that result from the ownership, care, maintenance, operation, or use of the vehicle described in the policy. If your hunting vehicle is not listed, it likely is not covered.
Even if your current policy covers the risks associated with fee hunting, check that the amount of coverage is sufficient to pay the full amount of potential damages. You may need to buy excess insurance or an umbrella policy.
Another option is to require the lessee to obtain liability insurance before hunting on the property, maintain it throughout the lease term, and include you as a “named insured” or “additional insured.” This should offer insurance coverage to you under the lessee’s policy in the event of a claim made by a third party.
Before signing the lease, ask for proof of coverage and a copy of the policy. Check that you are named as a named or additional insured and that the policy meets your requirements. Also check that the policy is not expired and will not expire before the end of the lease term. And make sure the policy cannot be cancelled without your notice.
With the risks involved in relying on your lessee’s policy, you should hire an attorney who specializes in insurance recovery to draft the insurance provisions in your lease and to review any policies obtained as a result.
Consider whether the lessee may bring guests onto the property and how many, and whether those guests may be children under the age of 18. Require that any guest be approved in writing by you and that they sign a liability release and indemnification agreement (discussed below). Under Indiana Code section 14-22-10-1, a person may not hunt upon privately owned land without having the consent of the owner or tenant of the land. You should provide written permission for the lessee. Consider using the permission form provided by the Indiana Department of Natural Resources (“DNR”), which also provides a warning notice and waiver meeting the requirements of the Agritourism Statute, Ind. Code § 34-31-9-14. You may find the DNR’s form here.
Be specific to the exact property you will be leasing. Use legal metes-and-bounds descriptions when possible or draw boundaries on an aerial photo, map, or diagram.
Make the lessee aware of other users of the property, e.g., oil and gas companies, and yourself. Require that the lessee acknowledge these activities could potentially interfere with his or her hunting ability and promise that he or she will act in good faith to accommodate and cooperate with these other users. The lease should address what will happen in the event that an interference occurs.
Specify the length of the lease. Will the lease automatically renew for the next year or terminate on a particular date? Is the permission for a particular season only, e.g. archery or firearm? Is it a multi-year contract? Caution: Most states, including Indiana, by statute, require agreements lasting longer than one year be in writing to be enforceable. It is strongly recommended, however, that all hunting leases be in writing regardless of the length of their term.
A hunting lease should include the terms of payment required under the lease, including the amount, the due date, the manner in which payment is to be made, and the remedy in the event of nonpayment. You can require payment per animal, per acre, per year, per person, or any combination of these factors. Indicate how the payment is to be made (daily, weekly, yearly, one lump sum, etc.). If using an installment method, you may want to impose a penalty for late payments. You also may wish to require a security deposit to cover any damage caused by the lessee.
Is the lease limited to dawn-to-dusk hunting or does it include camping? If overnight camping is an option, consider whether you want any restrictions on pets or alcohol use.
Designate the entrance points, gates, roads, and buildings the lessee is permitted to use.
Will you permit the lessee to use vehicles or ATVs on the property? In what areas? Stipulate that all gates be kept closed at all times, particularly if there are livestock on the property. Also include a requirement that the lessee repair or pay for any damage caused to the property, including damage to improvements, fences, and gates, death or injury to livestock, destruction of crops, and trash or other debris left on the property.
Will the lessee be able to construct any improvements on the property such as tree stands or shelters? Indicate if you want to restrict placement of such improvements, and any hunting blinds and wildlife feeders, and be specific. Must the lessee remove the improvements at the end of the lease? Consider setting a deadline.
Specify the type of hunting method allowed. This includes both the type of weapon that may be used (bow, rifle, shotgun, etc.) as well as other considerations, such as whether the lessee may use dogs during the hunt. Double-check that your limitations are consistent with the rules set by your state’s natural resources department.
Are there areas on the property you do not want guns shot on or towards? Describe the proper actions or procedures if a wounded deer runs onto your neighbor’s property. Do they call you? The neighbor?
State any wildlife harvest limits. Ask that the lessee report certain information about the animals killed. This could include photographs and measurements to be used for advertising purposes. Specify an area where any animal may be cleaned on the property and the requirements for carcass disposal.
Consider reserving your right to enter the property for various reasons during the lease, including to care for crops or livestock or to inspect the premises. Specify whether you and your family members have permission to hunt on the property during the term of the lease, or if the lessee has exclusive hunting rights. Consider who will get to hunt where on opening day, etc.
You do not owe a duty to provide for safety of every person who comes on your property. You may not know, however, when someone to whom you do owe such duty comes on your property. Further, you may be hauled into litigation and need to prove your case. Thus, for practical and legal purposes, it is a good idea to consider and implement safe hunting practices on your property. In your lease, outline safe hunting practices such as responsible gun handling; not shooting in the direction of people, livestock, or buildings; not using alcohol or drugs; and preventing fires on the property. Indiana requires anyone born after December 31, 1986 be certified in Hunter Education before they can purchase a hunting license. Indicate if you require that the lessee and their guests have attended a hunting safety course and if they must show proof of attendance. Require that the lessee report safety violations to you.
Generally, a person who breaks a hunting law risks having his or her hunting license suspended or revoked. 312 IAC 9‑2-10. To the extent you know or have reason to know your lessee is committing a fish and wildlife violation (for example, hunting over bait in Indiana) and acquiesce, you may be putting your hunting license at risk. Similarly, you may be guilty of aiding and abetting criminal activity if you know or have reason to know that your lessee is committing a crime and do nothing. See Ind. Code § 35-41-2-4. In your lease, require that the lessee abide by all state and federal laws, including game laws. Require the lessee and any other hunters to have valid hunting licenses covering the species identified in the lease. Ask for a copy of each hunter’s hunting license and make photocopies. Require that the lessee report any hunting law violations or other criminal activity to you.
If know or have reason to know that your tenant has committed a fish and wildlife violation, call 1‑800-TIP-IDNR (1-800-847-4367) or file a complaint online. Dispatchers are available 24 hours a day, 7 days a week. You can remain anonymous and may receive a monetary award. If you know or have reason to know your lessee has committed a crime other than a fish and wildlife violation, notify the police.
You also can limit much of your liability through waivers and releases, indemnification provisions, and insurance provisions in your lease.
Landowners should acquire a waiver and release from liability from the lessee as part of the lease. If there are to be guests with the lessee, a similar document should be signed by each of them. Through a properly drafted waiver, even if you charge a fee, you should be able to obtain the same level of liability protection afforded by state recreational use statutes. If a hunter is under 18, his or her parent or guardian must sign.
To be valid, the release from liability must be expressed in unambiguous terms and conspicuous. To be adequately specific, a release of liability should outline the potential dangerous conditions on the land. The release should then state that the lessee understands the potential dangers associated with entering the property and that the lessee voluntarily and knowingly releases liability of the landowner for any dangerous conditions, negligent acts, or gross negligence. It is critical that the release not only use the words “negligence” and “gross negligence” but that it specifically and explicitly refer to the negligence of the party seeking release from liability—in this case the landowner. To meet the conspicuousness requirement, the release should be a separate document written in large and/or bold font. You should seek legal counsel to draft a legally enforceable waiver.
In addition to the liability release, provide a clause that the lessee will indemnify and hold you harmless from any claim, demand, loss, damage, attorney’s fees, and cost resulting from any damages caused to others by the hunter or the hunter’s activity on the property. This is a critical issue and should be discussed in detail with an attorney to ensure the provision complies with Indiana law. Keep in mind that indemnification agreements only work if the party indemnifying you is solvent.
If you decide to require the lessee to obtain liability insurance before hunting on the property and include you as a “named insured” or “additional insured,” be sure to specify the minimum required level of coverage for bodily injury and property damage. Also require that the policy specifically identify the land where the hunting will take place. The policy should also defend you if you are sued and indemnify you if a judgment is obtained against you. Consider requiring that any coverage as an “additional insured” be independent of the actions or liability of the named insured (likely the lessee). If you do not include this requirement, make sure the lessee follows the terms and conditions of the policy—and know the consequences if they do not. You should hire an attorney who specializes in insurance recovery to draft the insurance provisions in your lease and review any policies obtained as a result.
If you plan to allow others to hunt on your property this season, educate yourself about your protections under your state law. Then, make calling an attorney part of your game plan.
This article is not a substitute for individualized legal advice. All parties—landowners and lessees—should consult with their own attorneys and insurance agents or brokers when entering into hunting leases and buying insurance policies.


It is a matter of common knowledge that Prior to the enforcement of Constitution of the Islamic Republic of Pakistan, 1973 all matters relating to the persons in the Service of Pakistan or Government service used to be dealt with either by the ordinary Courts or the High Courts. In the year 1973, in the wake of Administrative Reforms, some drastic steps were introduced, conceiving a separate, independent and autonomous forum for adjudication of disputes relating to the conditions of service of the persons in the Service of Pakistan. As a consequence, Art.212 of the Constitution was introduced envisaging the establishment of Administrative Tribunals to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons in the Service of Pakistan including disciplinary matters.
It is thus that the Parliament enacted the Civil Servants Act, 1973 and the Service Tribunals Act, 1973. The later was the result of enabling provisions of Art.212 of the Constitution aimed at to establish Federal Service Tribunal. In the Statement of Objects and Reasons for enacting the Service Tribunals Act, 1973, it was clearly mentioned “Article 212 of the Constitution provides that the appropriate legislature may by Act establish one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction, amongst other matters, in respect of terms and conditions of persons in the service of Pakistan, including disciplinary matters”. Thus, the Tribunal has its existence in the Constitution itself. The Hon'ble Supreme Court in Muhammad Yameen Qureshi v. Islamic Republic of Pakistan [PLD 1980 SC 22] highlighting its exclusivity of jurisdiction and origin observed “whose establishment is permitted by the Constitution itself” and that it has wide powers under Section 5 of the Act which is deemed to be a “Civil Court” for the purposes of deciding appeals having all such powers as are vested in the Court under the Code of Civil Procedure including the power to compel the production of documents. It has also been noted that such a Tribunal is “presided generally by a serving or retired Judge of the High Court able to do full justice” in the matter. In another case Islamic Republic of Pakistan v. Dr. Safdar Mehmood [PLD 1983 SC 100], the Hon'ble Court, conscious of the position prevailing prior to the establishment of the Tribunal, noted that “the law reports are replete with decisions on this question and testify to the extensive use made of the writ jurisdiction of the High Courts.” It was observed that to avoid the interference by the High Courts in the affairs of the service, completely new provisions were enacted in the Constitution of 1973 (Art. 212) which permitted the legislature to establish Administrative Courts or Tribunals with exclusive jurisdiction in the matters relating to the terms and conditions of persons in the service of Pakistan. Thus “The Civil Servants Act, 1973 was enacted on 26.9.1973 to regulate the appointments and provide terms and conditions of persons in the Service of Pakistan. Contemporaneously, the Service Tribunals Act, 1973 to provide for the establishment of Service Tribunals to exercise jurisdiction in respect of matters relating to the terms and conditions of service of civil servants was enacted on 29.9.1973”. . . . . . . . “Thus, under the new dispensation the Service Tribunal was made the sole arbiter of all the disputes relevant to the terms and conditions of civil servants; the jurisdiction of ordinary Courts was excluded altogether in these matters and even matters pending before them abated as soon as the Tribunal was established……. The Members of the Tribunal were to be appointed by the President and were expected to be experienced administrators, to be presided over by a Judge or a person qualified to be a Judge of the High Court and the orders passed by it were to be final. . . . . The only limitation to their otherwise complete powers in all such matters was that a right to this Court to grant leave to appeal in cases wherein it was satisfied that a substantial question of law of public importance was involved was allowed by sub-Art.(3) of Art.212 of the Constitution”. This is the importance, extent of powers and jurisdiction of FST highlighted by the Apex Court.
In a recent judgment Sheikh Riaz-ul-Haq and another v. Federation of Pakistan and others (PLD 2013 SC 501] while highlighting the background of the establishment of Service Tribunal, its powers, jurisdiction and authority in such matters, it has been held that it is a judicial forum akin to High Courts and Federal Shariat Court which performs judicial functions and exercises judicial powers and enjoys the status of a Court “required to be separated from the Executive in terms of Art.175 of the Constitution” which should act independently, following the principle of Independence of Judiciary, especially since their role is in substitution of the highest constitutional body i.e. High Courts and the Tribunal as judicial forum must enforce Fundamental Right of access to justice and should also enjoy financial autonomy as has been given to the High Courts and the Hon’ble Supreme Court of Pakistan. In conclusion, certain amendments in the existing law i.e. The Service Tribunals Act, 1973 were proposed and recommended for achieving its objectives.
The salient aspects about the Federal Service Tribunal highlighted by the Hon’ble Supreme Court of Pakistan are that it has been established under the enabling provisions of the Constitution (Art. 212); it is in substitution of the High Courts; it performs judicial functions and exercises judicial powers and is a “Court” and that it has exclusive jurisdiction in the matters pertaining to the conditions of service of persons in Service of Pakistan, with wide powers, amenable to the jurisdiction of Hon’ble Supreme Court of Pakistan under Art. 212(3) only when special leave to appeal is granted on a substantial question of law. However, an essential aspect which needs attention is that despite the verdict of the Hon'ble Supreme Court of Pakistan that the role of the “Tribunal is in substitution of the highest constitutional body i.e. High Courts” and is a judicial forum, which should have financial and administrative autonomy, the Tribunal is still considered as an attached department of Government.
Ever since the establishment of the Tribunal, it was headed by a Chairman from the judiciary (a serving or a retired Judge of Superior Court) which is consistent with the debates in the Parliament that the Chairman of the Tribunal should be a Judge of Superior Court “so that the Tribunal carries its weight and people have confidence that they are going to meet justice from Tribunal consisting of the judiciary officer as well as senior Government Servants”. It shows the high importance and the status of the Tribunal and expectation of dispensation of justice to the parties. Keeping all such aspects in view, I assumed this office with an objective to carry forward and take steps for possible improvements in its working and delivery of justice. I took over the office during the last days of year 2015 and launched program of clearance of backlog of old cases and expeditious disposal of cases. In order to achieve the goal, I took the Members of the Tribunal and administration along with me through formal and informal meetings. As the Bar is an integral limb of our judicial system, the learned members of the Bar who practice and conduct cases in service matters before the Tribunal were also taken into confidence. A formal meeting of all the Members of the Tribunal was convened at the Principal Seat to discuss and devise policy for due functioning of the Benches, fixation of cases and other allied matters. It was first ever such a meeting in which policy decisions were taken. Alhamdolillah, by the end of the year 2016 we were able to bring down the pendency to below 5000 cases. It was all due to the cooperation of the learned members of the Bar and devoted performance by the learned Benches of the Tribunal and support staff of the office. An organized effort has been made for case management / disposal. Weekly cause list issuance has been introduced as also prompt issuance of judgments of decided cases.
Launching of website is one such effort which has been carried out to provide ease to the litigants and lawyers to get prior information about due dates of their appeals through cause-lists duly uploaded on the website. There has been immense need for launching such website so as to enable the judicial fraternity to render expeditious justice with better legal outputs. The Tribunal offer this website as an efficient source of timely and relevant information, in an effort to continue fulfilling our mandate by improving access to justice and maintaining confidence in the judiciary. Innovative features have been incorporated, including a more robust judgment search function which incorporates new fields in the search template to help refine and narrow requests, allowing for more accurate and search-specific results. This will prove especially useful to lawyers and litigants in their search for important judgments of the Tribunal for precedents. The website will also enable the lawyers and litigants to get information about their case status through online legal information system, and Cause Lists. Statistical reports will also be provided to further update about the status of cases in the Tribunal. All the forms, publications, contacts and tenders will also be provided over the website. This is truly a significant milestone, one which evokes tremendous pride for the Judicial Officers, past and present, the Staff of this Tribunal and me, civil servants and lawyers should find this website a much more satisfying experience in terms of the ease and efficiency which it can be navigated. Thus, it is hoped, will lead to greater and more frequent use, and become the preferred information tool for keeping abreast of the Tribunal’s work, its schedule/calendar and events. I am particularly pleased to see this become a reality having regard to the fact that we have launched the website of Federal Service Tribunal. Effort will continue to ensure that user-experience is optimized. To this end we would welcome constructive feedback from the civil servants, Lawyers, and litigants.
In the end, I congratulate the Administration of Federal Service Tribunal for creating this useful website. I hope this website will prove to be very useful for the expeditious administration of justice.


Welcome to your weekly Title III update for April 15, 2019. This was a busy week.
The Motion ignores legal requirements that compel BNYM to maintain the confidentiality of the information the Oversight Board seeks by this Motion. Nor does the Oversight Board allow for a necessary process by which BNYM can provide its customers with notice and an opportunity to object to the Oversight Board’s request. These failings alone warrant the denial of the motion. . .
(6) The Oversight Board must bear the fees, costs, and expenses, including, without limitation, the fees and costs of internal and external counsel, research costs, and production costs, for conducting the requested search and production.
The Oversight Board’s requested Rule 2004 discovery is premature at best, unduly burdensome and potentially unnecessary, as it may be obviated (a) by the adjudication of the Joint Claim Objection, ERS Bond Objection, and Ad Hoc Objection (collectively, the “Bond Objections”), and (b) at least in part by the information received from DTC which the Oversight Board “expects  will identify with reasonable accuracy” certain of the Participant Holders. The Oversight Board acknowledges that its request is premature, by stating in its Motion that its need to identify the holders of Challenged Bonds is “depend[ent] on the outcome of the Joint Claim Objection, ERS Bond Objection and Ad Hoc Objection.” See Motion ¶ 3. Furthermore, should the Court rule in the Oversight Board’s favor and grant the relief sought in the Equitable Tolling Motion, the Oversight Board’s relief requested here would not be urgent or necessary at this time.
Moreover, the Oversight Board’s overbroad and patently burdensome requests in the Motion exceed the scope of Rule 2004. Instead of utilizing the discovery expected from DTC to narrow by date and purported holder its overly broad requests to BANA, the Oversight Board’s discovery requests relate to multiple BANA entities, seeking information pertaining to what could be thousands of transactions, contained on what could be different platforms and/or systems at BANA and/or another Bank of America entity. Indeed, at this stage, BANA has not yet been able to confirm that BANA is the correct repository and/or entity for the information sought. The information sought is expected to take significant time to identify and retrieve, let alone review with an eye for production.
It has been over twenty-two months since the Board commenced Title III proceedings on behalf of ERS. The Board has therefore nearly exhausted the two-year period that Congress provided for the commencement of avoidance actions under the Bankruptcy Code. See 11 U.S.C. § 546(a); see also 48 U.S.C. §2161(a) (rendering § 546 applicable to Title III proceedings). In all this time, the Board has done essentially nothing to investigate or pursue possible avoidance actions against holders of ERS Bonds. In fact, the Board admits it has not even determined what information it needs to identify the historic owners of ERS Bonds, much less begun the process of obtaining that information. See Motion ¶ 48.
The sole avoidance action against ERS Bondholders that the Board addresses in its motion is based on the argument that ERS’s issuance of its ERS Bonds was an ultra vires act. Yet the Board’s extreme delay in raising this claim is not because the Board only just learned of this theory. In fact—while the Board emphasizes that the Unsecured Creditors Committee (the “Committee”) only recently filed a claim objection to the ERS Bonds on this basis—the Board fails to inform the Court that this very ultra vires argument was first raised and briefed in November 2017 in two adversary proceedings to which the Board itself is a party. Yet the Board inexplicably did nothing in the intervening seventeen months to investigate this argument or pursue related avoidance actions.
You may remember on my last entry on April 1, I mentioned the several motions by the UCC requesting discovery on these issues and time and again the Board and the Court said stop. What will Judge Swain will do is anyone’s guess but there is clear evidence of the Board’s lack of interest in these actions. If Judge Swain agrees to the extension, as I believe she will, then those affected will have to wait to a case being filed against them, or at best, an appeal to the First Circuit, which has not been kind to her rulings.
All this has other implications. It seems the Trump administration is poised, sometime, to re-nominate present Board members to a three-year term. Should the President do this given the Board’s lack of interest in the Commonwealth’s causes of action? Can Democrats and leaders like Chairman Raul Grijalva support the current Board if they have ignored suing BPPR and Santander, among other banks, for their involvement in Puerto Rico’s debt? After all, Chairman Carrión and Carlos Garcia benefited from the actions of their respective banks. This is not me speaking, the UCC since early summer of 2017 has been insisting in conducting discovery on these issues but has stymied by the Board and the Court. Has the Board shown any respect to the “the relative lawful priorities or lawful liens, as may be applicable, in the constitution, other laws, or agreements of a covered territory or covered territorial instrumentality in effect prior to the date of enactment of this Act” as per section 201(b)(1)(N) of PROMESA? Has it instituted the structural changes that Puerto Rico needs as per sections 201(b)(1)(F) and 405(m)(4) of PROMESA? We must remember that it has failed to define essential services, which is the first step in ensuring “the funding of essential public services” as per section 201(b)(1)(B) of PROMESA? Any observer of the Board’s acts and omissions would have to say no. As of today, 31 days remain of the 90-day period provided by the First Circuit. What will happen is anyone’s guess.
First, consistent with the Court’s findings attendant to prior requests, adequate representation of the interests of GO Bondholders, as defined below, is provided through the zealous representation of GO Bondholders by ad hoc groups formed over the past two years. Second, appointment to the UCC would disrupt the Title III process and present a direct conflict. Specifically, as the UCC is party to the GO Related Objection, as defined below, having GO Bondholders seated on the UCC would generate internal conflicts and cause paralysis.
The UCC also filed an opposition for similar reasons. As I have said in the past, I doubt Judge Swain will appoint such a Committee but it is important to note the mention of “a shortsighted pursuit of a more favorable recovery” in the Ad Hoc Group which is a clear reference to the newly formed Lawful Constitutional Debt Coalition, which (more on this latter) has thrown the gauntlet to challenge the 2012 and 2014 GO bonds. Since the Lawful Constitutional Debt group is represented by the same firm which successfully negotiated the Senior COFINA deal, one has to wonder if their stance in the GO litigation has to do with that advantageous deal.
By design, the Post-Petition Legislation effectively turned the Commonwealth into ERS’s creditor. The UCC’s members are almost exclusively composed of unsecured creditors of the Commonwealth, and none are creditors of ERS. This creates a real and impermissible conflict of interest because the UCC cannot properly represent both ERS creditors and Commonwealth creditors at the same time—as the assets and future income ERS would use to pay its creditors were stripped and sent to the Commonwealth, which will use those same assets to pay its own creditors. As such, each member of the UCC has a significant conflict of interest with the unsecured creditors of ERS, whose interests the UCC is charged to represent.
To make matters worse, the UCC does not adequately represent ERS unsecured creditors because not a single UCC member filed a claim against ERS. Moreover, the ERS unsecured creditors, consisting of a significant amount of retirees and pensioners, already have adequate representation through the statutory Retiree Committee (defined below), making the UCC duplicative and unnecessary for the ERS case. For these reasons and as set forth herein, the Court should vacate the appointment of the UCC as the creditors’ committee in the ERS case.
This motion shows the high stakes in the ERS bond litigation. The UCC is challenging these bonds as illegally issued and the PR Funds is going against the legitimacy of the UCC as to ERS. Although the motion has merit, we have to examine the UCC’s response and in any event, I doubt Judge Swain would grant this motion.
The PR Funds also filed a limited objection to the “Motion of Official Committee of Unsecured Creditors, Under Bankruptcy Code Sections 105(a) and 502 and Bankruptcy Rule 3007, Establishing Procedures with respect to Objections to Claims Asserted by Holders of Bonds Issued by Employees Retirement System of Government of Puerto Rico and Requesting Related Relief.” The motion requests the Court hold in abeyance the UCC’s motion until it decides the vacatur motion as to the Committee. Again, procedural tactics in this high stakes litigation.
By the Conditional Procedures Motion, the GO Group asks the Court and hundreds of creditors to undertake an unnecessary months-long process for litigating its Conditional PBA Claims Objection, an objection that seems more interested in influencing public opinion than presenting a justiciable case or controversy.
The Coalition wants the litigation to be divided in two, to wit, (a) litigation involving the interpretation of the Constitutional debt limit and (b) a determination of what remedies, if any, that holders of the 2012 and 2014 may have against the Commonwealth. Interestingly, at footnote 18 of this motion, the Coalition states that during the first phase “parties may wish to move the Court to certify the issue of the interpretation of the Puerto Rico Constitution to the Supreme Court of Puerto Rico. If so, the Court may consider whether certification is warranted and appropriate under the circumstances.” (bold added) What does this mean? Two things, as I have argued, the invalidation of GO bonds does not mean there is no debt as per the Puerto Rico Civil Code. Second, the Coalition is giving notice that, as I have mentioned in the past, the Board and UCC objections to the GO’s is purely a Commonwealth law dispute. The attorneys for the Coalition were the same attorneys who joined Bettina Whyte in requesting that the District Court certify to Puerto Rico Supreme Court several issues (see, COFINA docket 332). Hence, we will soon see a motion to certify the questions to the Puerto Rico Supreme Court, which has merit but would deprive the District Court of control over this important litigation. Food for thought.
The Coalition also objected to the Board’s motion to toll the statute of limitations, calling it “inappropriate, unjustified and ill-timed.” The motion argues that the tolling must be used sparingly, that the Board has not “undertaken the requisite due diligence necessary for invoking” the doctrine and that it “has not identified any ‘extraordinary circumstance” beyond its control that made it impossible to filed the Challenged Bond Avoidance Actions.” The QTCB Noteholder Group filed a motion for reservation of rights as to the tolling, agreeing to a six-month tolling but not to any further extension.
The Stipulation—which the Oversight Board negotiated and filed without consulting at all with, or even providing advance notice to, the Committee—tolls the time in which avoidance actions must be brought by the Commonwealth against the HTA, or vice versa. That aspect of the Stipulation is obviously not problematic. Critically, however, the Stipulation also allows the Commonwealth or the HTA—but only the Commonwealth or the HTA—to terminate, or indefinitely extend, the tolling period, including the No Suit Provision. Moreover, the Stipulation provides that it is binding on “any trustee which may be appointed pursuant to section 926 of the Bankruptcy Code.” In other words, while ostensibly engaging in a meet and confer process with the Committee as required by the Procedures Order, the Oversight Board was simultaneously agreeing to a Stipulation that effects exactly the result the Committee, in those same negotiations, had advised was unacceptable. . .
At the very least, the Court should not decide whether it is appropriate to approve a Stipulation that binds a Section 926 Trustee and allows the Debtors and/or the Oversight Board to indefinitely extend a tolling agreement until there is clarity as to how the section 926 process will unfold and whether, as stated in the Joint Motion, the Committee and the Oversight Board are able to reach a consensual resolution obviating the need for any Section 926 Motion.
The section 926 issue is important. The UCC has informed the Court it may ask to be appointed as trustee under said section to pursue actions that the Board may not want to take. The Committee asked for an extension until today to file such a motion. This undoubtedly will bring conflict with the Board.
In PREPA, the Board and some monolines agreed to further extend the time for the lift stay hearing, having come to certain agreements but Syncora and National objected. Judge Swain extended the period since she prefers everything to be settled, as every judge I know prefers. The hearing, if actually undertaken, is set for May 29, 2019. Another issue to be presented to the SCOTUS when the Board requests a stay on the First Circuit Aurelius decision.
Also, PREPA bondholders filed an urgent motion objecting a privilege log and lack of timely production of documents and seeking “for an immediate status conference, to take place on Friday, April 12, 2019, or on the earliest other date and time that the Court can reasonably accommodate.” Obviously, the Board opposed the motion. Finally, PR Senate Bill 1121 was signed by the Governor, the public energy policy. As an example, we will have 40% renewable energy by 2025. If you believe that one, I have a little bridge in Brooklyn you can buy.
Welcome to your weekly Title III update for April 8, 2019. This was a busy week.
On Monday, April 1, 2019, Judge Dein listened to arguments on discovery disputes in the ERS case. It seems she was not happy with the Board and its attorneys and their objections were mostly denied. Judge Dein ordered that the parties meet and resolve disputes. On Friday, April 5, a stipulation was filed by AAFAF, the Board and ERS bondholders purportedly resolving most of the disputes. This discovery dispute is part of the ERS bondholders request to be named Trustee of the agency. Difficult, but we will see.
On Tuesday, the Ad Hoc Group of General Obligation Bondholders filed a “Conditional Objection” to “Claims Filed Or Asserted By The Public Buildings Authority, Holders Of Public Buildings Authority Bonds, And Holders Of Certain Commonwealth General Obligation Bonds.” This objection states that the Board and UCC’s objections are wrong BUT, if they are right, they have to sue many other groups of bonds since the claims in the objection are also valid for a series of bonds. The statement is totally true and I assume was intended to put pressure on the Board to stop its actions since the statute of limitations runs out for the Commonwealth on May 2, 2019. That same day, however, the Board filed a motion requesting the equitable tolling of the statute of limitations for actions against bonds and intimated that it could included other GO, PBA, ERS, HTA bonds, among others.
The Board, quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005), states that “[f]or those statutes of limitation to which equitable tolling applies, a litigant who seeks tolling must establish at least two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way.” The motion makes a very self-serving discourse of the Board’s actions, which is not exactly true. I explain.
On May 2, 2017, the Board authorized the Commonwealth to file for Title III protection. This means that the possibility had been considered for months before and Proskauer Rose, the Board’s attorneys, were hired on November 25, 2016. Moreover, Proskauer was not a stranger to the Commonwealth Government for it has contracts with Puerto Rico in the García Padilla administration and allegedly was the author of the Recovery Act that was invalidated by the District Court, Appellate Court and later the Supreme Court.
The Final Report [of Kobre & Kim] was not intended to identify Avoidance Actions and other potential claims the Commonwealth and its instrumentalities might hold against individuals and entities involved in the Commonwealth’s financial transactions.
In other words, the Board did nothing to look into these claims until very recently. Also, the Board’s motion is much more than an equitable tolling issue. At page 13, paragraph 34, it states that not only are the GO bonds objected to invalid and do not have to be paid, but that it will seek the clawback payment of whatever the Commonwealth gave bondholders. In other words, the Commonwealth committed fraud against the bondholders, will not pay its obligations and will get back whatever it paid. Then at page 19-20, paragraphs 52-53, the Board pontificates that defendants have had to defend these cases and having the Board sue everyone would be an undue burden on these poor souls and it would be better to toll the statute of limitations to see if the Board is successful. In other words, all those that may potentially be sued by the Board must patiently wait for the resolution of a case in which they are not involved but whose outcome will determine if they will be sued in the future. Talk about a Damocles sword.
The extension of the statute of limitations would be 90-days after the ruling on the claims objection or 90 more days to finalize the investigation on the “Challenged Board Avoidance Defendants.” Even with what I have said, there is little doubt Judge Swain will grant the Board’s request and toll said statute of limitations. What the First Circuit will say about this is anyone’s guess.
After having taken plaintiffs’ capital and liquid resources through a fraudulent scheme and dereliction of its duties, the government’s lack of honesty was continued and aggravated by its failure to mitigate the risks and losses caused by it, a failure ever graver in light of the responsibilities inherent to the government’s role as financial regulator and insurer of member shares and deposits.
The claims here go back to the Fortuño administration but it is emblematic of the view many of us have of the Commonwealth’s Government. The complaint also claims that once discovery commences, they will sue “Securities firms A–Z, which acted as underwriters, underwriting syndicate member, selling group manager, selling group member, broker and/or dealer, financial advisor, or in any other capacity in relation to the Puerto Rico Debt Securities,” and “[l]aw firms and counsel who acted as advisors and/or legal representatives to defendants identified in the preceding paragraphs and/or to issuers of Puerto Rico Debt Securities, with respect to said Puerto Rico Debt Securities and/or with regards to policy actions and omissions related thereto,” and “[a]ccounting and/or auditing firms which made audits or financial analysis or reports, or that acted in any other capacity in relation to the Puerto Rico Debt Securities, as defined hereinafter.” The Amended Complaint also claims violations of the Act Against Organized Crime and Money Laundering of the Commonwealth of Puerto Rico, a sort of local RICO Act. Corruption galore!
Add to this President Trump’s “Rebuilding Puerto Rico Efficiently and Accountably” of April 4, 2019, that discusses Puerto Rico’s many cases of governmental corruption, both at the Commonwealth and Municipal levels. Moreover, the Grand Jury investigation on the Commonwealth’s Department of Education and purportedly also of its former Secretary, Julia Keleher, adds to the uncertainty.
This uncertainty can be seen in President Trump’s lack of urgency in sending the reappointment of the Board’s members to the Senate with only 38 days left of the 90 day stay granted by the First Circuit. When will these appointments be sent to the Senate? Will the Supreme Court issue a stay? Since the Board’s appointment expires on August 30, 2019, one can argue that even if the Supreme Court were to grant a certiorari, it would be moot once these appointments are made. On the other hand, if the SCOTUS grants the certiorari and the Senate confirms the Board, what happens to the reappointment? PROMESA requires that any Board member to be reappointed must be done in the same way he/she were originally appointed. If the SCOTUS say that the original appointments were valid, any Senate consent and advice would be contrary to PROMESA and we would have to go through the same maelstrom. Hence, it all depends on what the President and the SCOTUS will do. In any event, given that President Trump seems poised to reappoint the same members of the Board, Aurelius and Utier must change the dynamics of their message. Let’s see what happens.
Does the First Circuit’s ruling in Aurelius have any effect on the arguments advanced by the parties in their briefing and oral argument on defendant’s motion to dismiss or the rulings made by the Honorable Susan G. Braden in her July 13, 2018 Memorandum Opinion and Order? If the answer is “yes,” then what is that effect?
Does the First Circuit’s ruling in In re The Financial Oversight and Management Board for Puerto Rico, 914 F.3d 694 (1st Cir. 2019), have any effect on the arguments advanced by the parties in their briefing and oral argument on defendant’s motion to dismiss or the rulings made by the Honorable Susan G. Braden in her July 13, 2018 Memorandum Opinion and Order? If the answer is “yes,” then what is that effect?
Have any binding, precedential decisions issued since July 13, 2019, that would affect the arguments advanced by the parties in their briefing and oral argument on defendant’s motion to dismiss or the rulings made by the Honorable Susan G. Braden in her July 13, 2018 Memorandum Opinion and Order? If the answer is “yes,” then what are those decisions and what is their effect?
Are there any arguments––not previously raised by the parties in their briefing and oral argument on defendant’s motion to dismiss––that the parties wish to make in support of or in opposition to defendant’s motion?
Defendant USA must file by April 29, plaintiffs by May 30 and the reply brief by June 13. This case, if won by plaintiffs, has the potential of derailing PROMESA for ever since I doubt that Congress would want to pay for any monies that Puerto Rico does not pay.
National, the Oversight Board, and Citigroup filed a stipulation in the PREPA lifting of stay for appointment of receiver case, resolving their discovery disputes, and Judge Dein denied the Board’s reconsideration of her order denying certain discovery it requested. In addition, the Board and plaintiffs requested and obtained an order from the Court moving the date for the hearing to May 15, one day before the stay expires, in order to continue settlement negotiations. I have said many times that I view this litigation as a tool by plaintiffs to obtain a better settlement than other bondholders but this could also be a way for the parties to stipulate the lifting of the stay for the appointment of a particular receiver. We will have to keep an eye on these developments since the stipulation before May 15 would be valid as per the First Circuit’s ruling, but will be strongly challenged by Utier, who insists, with good reason, that the Board’s actions are illegal.
Peter Hein, a COFINA and GO bondholder, filed a motion for the appointment of a GO bondholder official committee of holders of $2.5 million or less. Judge Swain denied without prejudice his first request, directing him to the US Trustees Office, who essentially denied his request. His point, which is not without merit, is that Puerto Rico is spending millions to invalidate bonds it issued and should pay for the representation of these bondholders. I sympathize with him but doubt that the Court would grant it given the lack of support by the US Trustees office. Again, I urge GO bondholders to unite and retain counsel.
Welcome to your weekly Title III update for April 1, 2019. Things are speeding up.
Andrew Scurria of the Wall Street Journal reported that President Trump would nominate the present Board members for confirmation by the Senate. Subsequently, two independent sources confirmed this information. Given the Board’s actions, there will be opposition on both sides of the isle in the Senate but some democrats may think it is better than a bondholder-friendly appointees. The PPD minority leader in the Puerto Rico’s House of Representative has already signaled his opposition to the appointments and the Commonwealth is complaining that the Board is using Puerto Rico’s money to lobby in DC for their reappointment. In any event, with only 46 days left in the 90-day stay period, the schedule is very tight for confirmation.
On March 25, the UCC filed a motion requesting that the Board inform them by April 1 of the avoidance actions it intends to file and requested an expedited consideration of their request. It also requested that the Court consider naming it Trustee pursuant to 11 U.S.C. § 926 to file any actions the Board would not. Not surprisingly, the Board opposed the motion and said that, if anything, it should be considered during the April 24 Omnibus hearing. The problem is that on May 2, 2019, the statute of limitations runs out to file said actions by the Commonwealth. Seems Judge Swain understood very well and ordered the Board to give the UCC a preliminary list by April 5. “The Committee and the Oversight Board shall promptly meet and confer regarding the contents of the Oversight Board’s preliminary list and anticipated allocation of litigation responsibilities. The Oversight Board shall thereafter provide to the Committee its final list of Commonwealth Avoidance Actions, including the aforementioned designations” by April 10. I think this means Judge Swain envisions the UCC and Board either dividing work on the avoidance actions or filing joint complaints. The order continues stating that the UCC could file a motion to be appointed Trustee by April 12 and the Board must file opposition by April 15. Court will hear argument during the April 24 hearing. This is clear victory for the UCC and only the third time Judge Swain has not sided with the Board on important issues. Moreover, given the timetable, no other party will be able to file a section 926 motion in time. Hence, if there is the appointment of said Trustee, it will be the UCC.
The UCC also filed an objection to the PREPA bondholders request for the lifting of the stay to appoint a receiver along predictable lines. Time for the Board and AAFAF to file was extended by Judge Swain, although many believe there will be some kind of settlement beforehand. Let’s wait and see.
Utier, PREPA’s union, filed a motion opposing the lifting of the stay and appointment of the receiver. What is different is that Utier calls instead for the appointment by the Court of an Independent Private Sector Inspector General and even if a receiver is appointed, to also have this “Inspector General.” The problem with this request is that the First Circuit, in FOMB v. Ad Hoc Group, 899 F.3d 13, 19 (1st Cir. 2018), made clear that Judge Swain cannot interfere with PREPA’s use of its property pursuant to section 305 of PROMESA without the Board’s consent. Since it is obvious the Board will not consent, this request will go nowhere.
The ERS dispute discovery dispute continues and will be argued on April 1 before Magistrate Judge Dein. I am sure that both sides have valid points and Judge Dein will have a reasonable solution to the disputes.
The PBA/GO’s litigation is not going to be simple or short. Hence, I agree with Ms. Jaresko that the Commonwealth Plan of Adjustment will probably be filed at the end of this year or later. Especially if Judge Swain has not decided the PBA/GO’s issue.
To which Skeel responded “[a]s you know, @cate_long , PROMESA requires @FOMBPR to “ensure the funding of essential public services.” That’s exactly what we’re trying to do.” Section 201(b)(1)(C) of PROMESA requires that the Fiscal Plan “ensure the funding of essential services.” The mere fact that it is not services but ESSENTIAL services that need to be funded makes it clear that not all services provided by the Government are essential, as we saw during the Federal Government’s shutdown. The PR Government, however, has refused to downsize except through attrition and the Board, despite Judge Torruella and Judge Lynch separate opinions on the Board’s powers, has refused to force the Government to cut back in contracts, funding of useless government agencies (WIPR TV station and the State Elections Commission not in election years come to mind) or furlough employees. Moreover, the Board has even refused to define what is an essential service and so has the Commonwealth. Hence Cate’s comment. This lack of action by the Board will become important when the Commonwealth’s plan of adjustment is presented, which according to Mr. Skeel, is this month.


The name of this organization as set forth in Conn. Gen. Stat. § 31-3i shall be the Connecticut Employment and Training Commission ("CETC").
The principal office of the CETC shall be located at the Office of Workforce Competitiveness, 200 Folly Brook Boulevard, Wethersfield, CT 06109. It shall be called the Office of the CETC.
The purpose of the CETC is to function as the State Workforce Development Board under 29 U.S.C. 3111, of the Workforce Innovation and Opportunity Act of 2014, Public Law 113-128, as amended, and Conn. Gen. Stat. § 31-3h, as amended, to advise the Governor of Connecticut on matters relating to workforce investment, including the coordination and evaluation of all employment and training activities, and development of the state's workforce investment plan as required by WIOA.
The composition of the CETC shall be in accordance with 29 U.S.C. 3101, et seq., the Workforce Innovation and Opportunity Act, Public Law 113-128, as amended, Conn. Gen. Stat. § 31-3i and other Federal and State laws that shall be applicable from time to time.
The Governor shall make appointments to the CETC in accordance with 29 U.S.C. 3101, et seq., the Workforce Innovation and Opportunity Act, Public Law 113-128, as amended, Conn. Gen. Stat. § 31-3i, as amended, and other Federal and State laws that shall be applicable from time to time.
The terms of members shall be coterminous with the term of the Governor, and any vacancy shall be filled in accordance with Conn. Gen. Stat. § 31-3i(b)(2).
Each CETC member who elects to do so may submit to the CETC Chairperson for his/her review and approval the name of a single designee to attend meetings in his/her absence. Designees do not have voting rights at full CETC meetings or Executive Committee meetings.
Members of the CETC who are unable to attend duly called meetings of the CETC shall notify the CETC prior to the meeting stating the reason for absence. If a member is absent from three consecutive sessions (and is not represented at such sessions by a designee), for reasons the Chairperson has failed to declare to be sufficient cause, the Chairperson may recommend removal of such members to the Governor. The Chairperson shall notify such members of his or her intentions and the reason for the recommendation ten days prior to submitting his recommendation for removal to the Governor.
When members deem it necessary to terminate their participation in the CETC, they shall tender their resignation to the Governor with copies to the Chairperson in care of the CETC office.
When vacancies occur, the Governor shall appoint another appropriate person in accordance with 29 U.S.C. 3101, et seq., the Workforce Innovation and Opportunity Act, Public Law 113-128, as amended, Conn. Gen. Stat. § 31-3i(b)(2), as amended, and other Federal and State law that shall be applicable from time to time, and inform the Chairperson of his/her action. Vacancies may be filled by the Chairperson on an interim basis by ex-officio members until new members are appointed by the Governor.
The Chairperson at his/her discretion may appoint ex-officio members. Said members shall have no voting rights, and shall have no right to submit a designee to the Chairperson to attend meetings in said member’s absence.
The Governor shall designate one representative of business and industry to be Chairperson. The Chairperson shall preside at all meetings of the CETC, shall appoint committees and their chairpersons as needed, and shall in general perform all duties incident to the office of Chairperson.
The Vice-Chairperson shall be elected by the voting members at the first meeting of the CETC after receiving official notification of the vacancy, and at the request of, or in the absence of the Chairperson shall perform the duties of the Chairperson.
The officers of the CETC shall perform such other duties and functions as may be required from time to time by the CETC, its by-laws, and related state and federal statutes and regulations.
In the absence of all officers, a temporary chairperson shall be elected by the voting members of the CETC present at a quorum. The temporary chairperson shall serve for such meeting only.
The CETC shall meet no less than once every calendar quarter pursuant to Conn. Gen. Stat. § 31-3i(c).
Written notice of each regular meeting shall be sent to members at least ten (10) calendar days prior to the scheduled meeting. The notice shall specify the time, date, location, agenda for the meeting, and shall include the minutes of the previous meeting. Such notice also shall be filed in accordance with Conn. Gen. Stat. § 1-225 of the Freedom of Information Act.
Correspondence, documentation and information pertinent to agenda items shall be received by the Chairperson in care of the Office of the CETC until five (5) calendar days prior to the meetings. The agenda of regular meetings shall be filed in accordance with Conn. Gen. Stat. § 1-225 of the Freedom of Information Act.
The last regular meeting of the 12-month period ending in September shall be known as the annual meeting.
Meetings of the CETC shall be open to the public in accordance with 29 U.S.C. 3101, et seq., the Workforce Innovation and Opportunity Act, Public Law 113-128, as amended, and the State of Connecticut Freedom of Information Act, and public notice shall be filed as required by those authorities.
Subsection a. Attendance by Telephone or Similar Means of Communication. CETC members may participate in any meeting via conference telephone or other similar communications equipment as permitted by the Chairperson provided that all participating CETC members may simultaneously hear one another during the meeting. Any member who participates by conference telephone or other similar means is deemed to have been present in person at the meeting.
Special meetings of members may be called at any time by the Chairperson or by a petition signed by not less than a majority of the CETC members. The petition shall set forth the reason for calling the special meeting. For special meetings called by the petition, the Chairperson shall be responsible for ensuring that the call: a) includes the written request of the petitioners, b) is issued within five (5) calendar days of receipt of the request by the Chairperson. Such meetings shall be held at a location convenient to the membership. Any business taken up at a special meeting shall be limited solely to the purpose for which the special meeting was called. Notice of special meetings shall be filed in accordance with Conn. Gen. Stat. § 1-225 of the Freedom of Information Act.
This order is not mandatory for Committee Meetings.
Subsection b. Any item on a regular meeting agenda which members have not had a minimum of five (5) days to review shall not be acted upon, unless two-thirds of the membership present shall suspend the rules for action on the item.
Subsection c. Non-members of the CETC shall be permitted to comment on items scheduled for action during the public comment period specified on the agenda. Non-members may also submit written comment on items scheduled for action for review by members during the agenda period specified for correspondence. Such written comment shall be submitted in accordance with the provisions of Article IV, Section 2. Non-members shall be permitted to speak to items brought before the CETC at the discretion of the presiding officer.
Voting rights at meetings of the CETC are restricted to the regular members. Each member shall cast one vote. The Chairperson shall be entitled to a vote and shall further be authorized to break tie votes.
The vote on all questions coming before the CETC shall be roll, hand, ballot, or voice vote by voting members, at the option of the Chairperson. Action shall be by simple majority of the quorum.
A simple majority of voting (regular) members shall constitute a quorum.
CETC members who believe the viewpoints they expressed did not receive adequate consideration in the CETC deliberations may prepare dissenting reports which shall be directed to both the Chairperson and the Governor.
Subsection a. Members of the CETC shall not receive compensation for their services, but may be reimbursed out-of-pocket expenses directly related to the discharge of the CETC's affairs.
Subsection b. No CETC member may receive anything of value as a result of a benefit conferred by the State of Connecticut upon an organization with which the CETC member is affiliated.
Subsection c. A CETC member must disclose with particularity the nature and extent of any affiliation with an organization that is seeking anything of value from the State of Connecticut prior to consideration of the request by the CETC or an appropriate committee thereof.
Subsection d. No member shall vote on a question in which he or she has a direct personal or pecuniary interest not common to other members of the CETC; nor may a member engage in any other activity determined by the Governor to constitute a conflict of interest, as specified in the State Plan required by WIOA. The minutes of the meeting shall record compliance with this requirement. The interested member may not state his or her position regarding the subject but may answer questions of other members, since his or her knowledge may be of assistance.
Except to the extent contrary to the express provisions of these By-laws, the proceedings of the CETC, its committees, or any subdivisions thereof are subject to Robert's Rules of Order.
The Chairperson shall appoint ad hoc, standing committees or task forces as he/she deems necessary.
All committee or task force chairpersons shall be appointed by the CETC Chairperson and shall be a member or ex-officio member of the CETC.
The CETC Chairperson shall assign CETC members to committees or task forces. The CETC Chairperson shall also have the power to appoint any other person whom he/she feels may contribute to the deliberations of such committees, regardless of such person's status as a CETC member. No such duly appointed non-CETC member may be represented by a designee. In addition, designees of regular CETC board members may not be represented on committees or task forces by alternates.
All persons appointed by the Chairperson to serve on any ad hoc, standing committee or task force shall have full voting rights on the committee or task force.
Committees shall meet on an "as needed" basis subject to the call of the Chairperson of the CETC or the committee chairperson.
Provisions of CETC By-Laws ARTICLE IV apply to the conduct of ad hoc, standing meetings and task forces except as otherwise specified in this ARTICLE V.
There shall be an Executive Committee appointed by the Chairperson of the CETC. Membership shall be comprised of but not limited to the CETC officers and chairpersons of standing committees or workgroups. Except for ex-officio members who do not have voting rights, the Executive Committee subject to the vote of all statutorily appointed members, shall have all of the power of the CETC to act on issues that surface or require action between scheduled CETC meetings, however, none of its actions shall conflict with actions taken by the full CETC, nor with the state's five-year strategic plan for workforce investment which shall be acted on only by the full CETC. The agenda and related informational materials prepared for Executive Committee meetings will be distributed at least five (5) days in advance to all members of the CETC.
These By-laws may be amended or repealed or new by-laws may be enacted by a two-thirds vote of the CETC membership.
Written notice of proposed By-law changes shall be sent to members at least ten (10) days in advance of the meeting at which they are to be acted upon. Such notice shall include the proposed additions and deletions, as well as the Article and Section reference.


text:
The King v. L. Seeder de Silva.
Present: Howard C.J. and Keuneman and Nihill JJ.
No. 1 of 1940fS. C. No. 5/M. C. Kalutara, 44,026.
Misdirection of law—Misdirection of fact no ground of appeal—Circumstantialevidence—Duty of Judge to direct the Jury on law applicable—Wherethere is no case to go to the jury—Duty of Judge to direct a verdict ofnot guilty—Grounds of appeal—Failure to state grounds in notice—Court of Criminal Appeal Ordinance, No. 23 of 1938, s. 4 (b).
A wrong direction as to the law, which obtains gener-Jly in the class ofcases to which the particular case belongs, or as to the law applicable to-the special facts of the case is a misdirection of law.
A mistake of fact or an omission to refer to some point in favour of theaccused is not a misdirection of law but falls under “any other ground ’*within the meaning of section 4 (b) of the Court of Criminal AppealOrdinance.
In a case resting upon circumstantial evidence the Judge shouldexplain to the jury the main principles that should be followed inappreciating such evidence. But where the charge contains passageson which it is open to the jury to find an innocent as well as a guiltyexplanation in the circumstances proved, the charge cannot be said to beunfair or prejudicial to the accused.
Section 234 (1) of the Criminal Procedure Code imposes a duty on theJudge, if he considers there is no evidence to go to the jury that theaccused committed the offence, to direct a verdict of “ not guiltyThe Court of Criminal Appeal will as a general rule refuse to entertaingrounds not stated in the notice of appeal.
But where the appellant is without legal aid and has drawn his ownnotice the Court will not confine him to the grounds stated in the notice.
(1) As a matter of law there was no case to go to the jury.
(2) In dealing with a possible theory involving the guilt of the accusedthe learned Judge addressed these words to the jury, “ I cannot refer toanything that he may have said to the Police because the law preventsany reference being made to that ”, It is submitted that this is a mis-direction in that the words used by the Judge, having regard to thecontext in which they were used, suggest or tend to suggest to the jurythat the accused had made a confession to the Police.
The King v. L. Seeder de-Silva.
the accused who unlocked the door for the Police to enter, it is submittedthat this misdirection was calculated to cause grave prejudice to theaccused.
In dealing with the admittely abnormal behaviour of the accusedin general, the Judge directed the jury to consider whether such behaviourwould be sufficient to bring the accused within the exception created bysection 77 of the Ceylon Penal Code, but failed to direct the attention ofthe jury to the bearing of such abnormality on the question of theinferences to be drawn, with reference to the alleged guilt of the accused,from the conduct of the accused in relation to the incidents of the day inquestion. Referring to the possibility of the accused having dressed andlaid out the body of the deceased, the learned Judge directed the jury toconsider whether the master of a house finding his servant stabbed,would act in that way, without immediately informing the Police,implying thereby that the jury had to consider whether a man wouldnormally act in that way, if the deceased had been killed by someoneelse. It is submitted that the failure to draw the attention of the juryto the fact that the accused was abnormal in his general behaviour is anon-direction amounting in the circumstances to a misdirection.
In the absence of proof that the blood found on exhibits P 2 andP 3 was human blood, or a tittle of evidence indicating it to be such, theJudge was wrong in directing the jury to regard it as an item of realevidence, which may be taken into account-by them.
H. V. Perera, K.C. (with him M. T. de S. Amerasekere, K.C., S. Allesand N. M. de Silva), for the accused, appellant.—The furthest the evidencegoes, is to indicate opportunity. This is insufficient. It does notexclude the possibility of a person other than the accused committing theact. If this is the case, the fact is not inconsistent with the hypothesis ofinnocence.
The evidence is to the effect that it was the accused who unlocked thedoor for the Police to enter. The effect of the learned Judge’s charge tothe jury is to identify the person who unlocked the door with themurderer. (Counsel cites the relevant passages.) This is a misdirection,and moreover prejudicial to the accused.
Statements in the nature of confessions made by accused persons tothe Police officers are inadmissible in evidence (vide section 25, EvidenceOrdinance). This is a well-known rule of evidence and it is inconceivablethat the jury are unacquainted with this proposition, so that the learnedJudge’s statement, “ I cannot refer to anything that he may have said tothe Policfe because the law prevents any reference being made to that ”,in effect, suggests to the jury that the accused made a confession to thePolice. Statements of accused to the Police other than confessions areadmissible. This is all the more reason why the jury might have inferred,that the statement of the accused to the Police was to the effect that hecommitted the offence.
The evidence indicates that the behaviour of the accused is abnormal.Assuming that the body was arranged by the accused, this circumstancedoes not identify him as the murderer. Considering the feelings of theaccused for the deceased it is not unnatural that he should have acted inthis way, seeing the woman murdered.
The tCr.g v. L. Seeder de Silva.
There is no case to go to the jury. Section 234, Criminal ProcedureCode, provides that the Judge should direct the jury to return a verdict ofnot guilty when after the prosecution is closed the Judge considers thatthere is no evidence, that the accused committed the offence. Takingthe case for the prosecution as a whole, one cannot say that a prima faciecase is made out against the accused. This is a matter for the Judge toconsider even though there is no submission from Counsel for the defence.
J. W. R. llangakoon, K.C., Attorney-General (with him E. H. T.Gunasekera, C.C.), for the Crown.—Points 2 to 5 are not questions of ldw.They are questions of fact. According to section 4, sub-section (b), of theCourt of Criminal Appeal Ordinance, No. 23 of 1938, there is no right ofappeal on facts without leave of Court. Leave has not been obtainedhere.
Taking the evidence adduced in the chse as a whole there is stringentproof of circumstances to support the charge against the appellant. Insuch cases the absence of an explanation from the accused militatesagainst him. (The Attorney-General here referred to various items ofevents and circumstances and cited Wills’ Circumstantial Evidence, -pages314-316, 7th ed.) The principles laid down in Wills have been adoptedhere. See Inspector Arendsly v. Wilfred Pieris1 and cases referred to inDias’ Criminal Procedure Code, Vol. I., p. 640.
Whether there is evidence to go to the jury is a question of law (seeBenjamen Pearson s). Although this point was not raised by Counsel atthe trial there was sufficient circumstantial evidence from which the jurymay legitimately draw an inference adverse to the accused. (TheAttorney-General here referred to the evidence.) Under such circum-stances it is submitted $iat the learned Judge could not havewithdrawn the case from the jury.
The mere presence of some expressions used by the Judge in his chargewhich are open to criticism will not avail the appellant. The summingup must be considered as a whole. The burden is on the appellant toshow that notwithstanding the presence of some expression open toobjection there has been some substantial miscarriage of justice. Unlessthe appellant establishes this, the Court will not interfere. See thejudgment of the Lord Chief Justice in the case of Dodds’.
Even when the point of law is a good one, which the Court will giveeffect to, the Court may dismiss the appeal if no substantial miscarriagehas resulted. See the case of Allen *. On the question of miscarriage ofjustice it is open to the Court to consider the whole of the evidence andeven to admit fresh evidence. See Rex v. Abraham George=. TheAttorney-General referred to the contents of a diary the entries in whichhad been ruled out by the Judge. No doubt it was open to the prose-cution to prove the handwriting of the accused. There is ample proof thatthe document was in his possession. Having regard to the circumstancesand the contents of the dairy it is submitted that the material is ampleto create the presumption that the appellant was acquainted with itscontents. See Phipson on Evidence, 5th ed., p. 241.
l10 Ceylon Law Weekly 121.3 1 Crim. App. Rep. 77.
5 1 Crim. App. Rep. 168.
H. V. Perera, K.C., in reply.—The cases cited by the Attorney-Generalare distinguishable. In those cases, without an exception, certain incri-minating circumstances pointing to the guilt of the accused were definitelyproved. In this case all that one can say is that there was evidence ofopportunity. The distinction between suspicion and proof has beenforcibly brought out in Justice Darling’s charge to the jury in SteinMorrison’s Trial at p. 275 of the report in the Notable British TrialSeries.
The burden of proof does not shift on to the accused unless and untilsome incriminating circumstances have been proved by the prosecution.In this case there is no case to go to the jury. See William Wallace*.The grounds on which the Court will hold that there has been amiscarriage of justice are considered in Cohen v. Bateman '.
11 Crim. App. Rep. at p. 238.* 23 Crim.. App. Rep. 32.
9 Crim. App. Rep. 189.5 2 Crim. App. Rep. 197.
» (1939) 1 All. Ey. Rep. 396.8 2 Crim. App. Rep. 207.
HOWARD C.J.—The King v. L. Seeder de Silva.
formulated, we are of opinion that grounds 3, 4 and 5 cannot be regardedas involving questions of law. The suggestion in ground 5 that thelearned Judge was wrong in directing the jury to regard the finding of theblood as real evidence is a complaint with regard to a misdirection as toa fact. Ground 4 is an alleged omission to refer to some point in favourof the appellant. Ground 3 is an alleged misstatement of the evidence."We are of opinion that ground 2 must he regarded as involving a questionof law inasmuch as the phraseology employed by the Judge if construedas contended for in the grounds of appeal had the effect of bringing to thenotice of the jury the fact that the appellant had made a confession.Applying therefore the strict letter of the law, grounds 3, 4 and 5 were notproperly before the Court. In view, however, of the uncertainty withregard to what is a question involving a point of law we have decided inmaking our decision on the appeal to take these grounds into consideration.
We do not consider that ground 3 bears the construction placed upon•it by Counsel for the appellant. Read with the rest of the context itcannot be said that the learned Judge told the jury that one person musthave done all of these acts. He is putting before the jury various hypo-theses. The words that follow the passage of which complaint is madeindicate that the person who locked the door, that is to say the appellant,may not have been the murderer.
Ground 4 raises a matter of small importance. It is true that withregard to the laying out of the body the learned Judge did not particularlyrefer to the "abnormality of the appellant. On the other hand a largepart of the summing-up is devoted to a consideration as to whether hewas of sound mind. It cannot be contended, therefore, that suchabnormality would not be present in the minds of the jury when theywere considering this and every aspect of the case.
With regard to ground 5 it might have been better if the learned Judgehad informed the jury that there was no evidence that the blood washuman blood. On the other hand they were warned that it might be anyother kind of blood and the matter was left for them to decide. We donot consider the appellant was prejudiced by this passage.
The point made with regard to ground 2 is that the reference to thestatement made by the appellant to the Police would inevitably lead thejury to think that the appellant had made a confession. The policemanto whom the statement had been made by his omission to relate in hisevidence what the appellant said to him might with equal force be said tohave brought to the notice of the jury that the appellant had made aconfession. Moreover, jurymen are not so well versed in legal procedureas to infer from the words used by the learned Judge that a confessionhad been made. Jurymen know that the law formulates various ruleswith regard to the admission of evidence. They are not, however, fullyacquainted with such rules and in these circumstances it does not followthat the phraseology of the Judge suggested to their minds a confession.
To sum up we are of opinion for the reasons I have stated that there isno real substance in grounds 2, 3, 4 and 5.
ground not mentioned in the notice of appeal, namely, that the learnedJudge omitted to explain to the jury the main principles to be followedin appreciating circumstantial evidence and, in particular, to point out tothem that before they could convict, they must be satisfied that theincriminating facts must be incompatible with the innocence of theaccused and incapable of explanation upon any other reasonable hypo-thesis than that of his guilt. This alternative ground of appeal isintimately connected with ground 1 and, in these circumstances, we havegiven it consideration although it is not raised in the notice of appeal.Generally speaking this Court will refuse to give effect to grounds notstated in the notice, but when the appellants is without means to procurelegal aid and has drawn his own notice, the Court will not as a rule confinehim to the grounds stated in his notice.
thje death of the deceased. At the Police Station the appellant made astatement in consequence of which Sub-Inspector Ratnarajah went withthe appellant to his house. The appellant opened the door with a keywhich he had in his pocket. All the doors and windows were closed. Ina room the Inspector saw the body of the deceased covered with a clothlaid on a mat with the head resting on a pillow. She was dressed in awhite jacket and a white cloth which were soaked with blood. Her handswere placed on her chest clasped together with a bunch of orchids placedin her hand- A candle fixed in a bottle was burning at the time. A knifecovered with blood stains and identified as having previously been in thepossession of the appellant was on the pillow. The deceased’s hair wascropped short. The appellant told the Inspector that the hair cut fromthe woman’s head would be in the shed. The Inspector went to the shedand found the hair there. The appellant also took from the bed someclothes—exhibits P 2 and P 3—which were identified by the dhoby asbelonging to the appellant. These clothes had blood stains on them. Itwas not, however, established that it was human blood. The Inspectorthen took the appellant to the Police Station, searched him and found adiary in one of his pockets. Inside the diary was a Galle Gymkhana Clubsweep ticket the nom de plume being “ Lily ”, one of the names of thedeceased. The dairy also contained certain entries. The handwritingthat made these entries was net proved to be that of the appellant. Inthese circumstances we are of opinion that such entries cannot be takeninto consideration.
344HOWARD C.J.—The King v. L. Seeder de Silva.
This dictum applies in the present case. A strong prima facie case wasmade against the appellant on evidence which was sufficient to exclude thereasonable possibility of someone else having committed the crime.Without an explanation from the appellant the jury were justified incoming to the conclusion that he was guilty.
HOWARD C.J.—The King v. Bellana Vitanage Eddin.
The appeal is therefore dismissed.

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