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Since 2009, the Supreme Court has issued two decisions circumscribing the use of juvenile life without parole sentences. In Graham v. Florida the Court held juvenile life without parole unconstitutional in non-homicide cases. In Miller v. Alabama the Court held mandatory juvenile life without parole cases unconstitutional, regardless of the crime.
Both cases rested on the principles first set forth by the Supreme Court in Roper v. Simmons emphasizing that juveniles are different from adults in ways that are constitutionally relevant to juveniles’ culpability: youth are more impetuous than adults, more susceptible to outside pressures, and more capable of change, reformation, and rehabilitation.
Graham v. Florida involved a challenge to a sentence of life without parole imposed on a 16-year-old convicted of violating his probation following a conviction for robbery. In ruling that such a sentence is categorically unconstitutional for any juvenile convicted of a non-homicide crime, the Court noted such sentences were unconstitutional given the limited culpability of a young offender and the severity of the sentence.
In Miller v. Alabama, Court considered the constitutionality of imposing life without parole sentences on juveniles convicted of homicide offenses. The Court held that such mandatory sentences violate the Eighth Amendment’s prohibition on cruel and unusual punishments, and that a judge or jury must have the opportunity to consider mitigating circumstances before imposing a life without parole sentence. The opinion made clear that life without parole sentences should be rare, and that mitigating circumstances include: age and its hallmark features, the youth’s home and family environment, the circumstances of the homicide offense and the youth’s level of involvement, and the extent to which the defendant’s age impacted his or her ability to deal with police officers, prosecutors, or to assist his own attorneys.
In Commonwealth v. Cunningham the Pennsylvania Supreme Court held that Miller is not retroactive.
The issue is currently pending in the third circuit in the case of Songster v. Beard. Oral arguments are scheduled for Wednesday, February 25, 2015.
Around the country, advocates are arguing that Miller stands for the proposition that any mandatory minimum sentence is unconstitutional. Most notably, the Iowa Supreme Court held in State v. Lyle that a mandatory minimum sentence of seven years was unconstitutional as applied to a juvenile, pursuant to Miller.
A minimum of 35 years to life for youth ages 15-17.
A minimum of 25 years to life for youth 14 or younger.
A minimum of 30 years to life for 15-17 year olds.
A minimum of 20 years to life for youth 14 or younger.

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In Shergar Developments v. Windsor, the Ontario Municipal Board made an unprecedented award of costs to the expropriating authority and significantly reduced the claimant's entitlement to statutory interest.
The recent decision of the Ontario Municipal Board (the "Board") in Shergar Developments v. Windsor (City) ("Shergar") provides new support for expropriating authorities looking to control costs from claimants who delay their claims or advance unreasonable positions in land acquisition cases.1 In Shergar, the Board made an unprecedented award of costs to the expropriating authority, the City of Windsor, and significantly reduced the claimant’s entitlement to statutory interest.
The decision is timely in an era when land acquisition is an increasingly expensive and complex proposition. Changes to land use planning in Ontario will increasingly necessitate that public infrastructure such as schools, rights-of-ways, and transit stations will need to be built within existing urban boundaries rather than on greenfield sites. In addition to skyrocketing land costs, long construction timelines in urban areas will also increase claims for disturbance damages, business losses, and injurious affection.
The increased complexity of expropriation litigation will also drive up legal costs and entitlements to statutory interest. The Expropriations Act (the "Act") requires an expropriating authority to pay 6 per cent interest on outstanding awards for market value and injurious affection. In the current era of low interest rates, an outstanding claim becomes a good investment unless procedural controls can be exercised. The authority must also pay a claimant’s reasonable costs if the claimant is awarded 85 per cent of the authority’s statutory offer of compensation.2 Traditionally, a claimant was almost always guaranteed to beat the 85 per cent rule because the expropriating authority is obliged to make an offer in full compensation for the registered owner’s interest in the land. Only in rare instances would an expropriating authority take a position at hearing on market value that was below the Section 25 offer.
In civil litigation, Rule 49 of the Rules of Civil Procedure incentivizes litigants to make reasonable offers to settle before proceeding to trial. For example, if a defendant makes an offer to settle and the plaintiff does not beat the offer at trial, the plaintiff will generally have to pay the defendant’s costs from the date of the offer.3 While the Board incorporates the Rules of Civil Procedure by reference,4 Board jurisprudence has not always been clear as to whether a subsequent, more generous offer made by the expropriating authority would count under the meaning of "offer" pursuant to costs provisions of Section 32 of the Act.
In June 2015, the City made a subsequent offer that included set-off for legal fees incurred in parallel civil claims. The quantum of the offer was significantly more generous than the Section 25 offer and the City’s position advanced at the hearing.
In its decision of May 2016, the Board agreed with the estimate of the City’s appraiser, finding that the market value of the expropriated lands was $710,000. The City requested the opportunity to unseal the offer and make submissions on costs based on its subsequent offer. The Board denied the request, reasoning that the award of $710,000 was greater than the Section 25 Offer.
The City also requested that the Board reduce Shergar’s entitlement to interest for its protracted litigation and for delaying its claim once the civil claims had been dismissed. The Board ordered a small variation in interest for the period of Shergar’s delay following the dismissal of the civil claims, but ordered the City to pay the full 6 per cent interest for the entire period of the previous litigation.
The City sought a review of the Board’s award of costs and interest pursuant to Section 43 of the Ontario Municipal Board Act.9 The Board determined that those portions of the Board’s 2016 decision were unreasonable and ordered a new mini-hearing on the issue of interest and costs. The Board’s finding on market value was not reviewed.
 The Board finds based on the principles underlying s. 32 of the Act and Rule 49 of Rules of Civil Procedure, and taking into account Shergar’s conduct in these proceedings that it should exercise its discretion to deny Shergar its reasonable legal, expert, and appraisal fees following service of the Offer and award costs to the City.
The holding in Shergar finally provides expropriating authorities with a clear precedent for penalizing a claimant’s delay and unreasonable litigation position. The rehearing decision will result in substantial savings to the City compared to the Board’s 2016 decision.
It is important to note that while the Board can take into account the consequences of a Rule 49 offer, the decision to award costs under Section 32(2) of the Act is still discretionary. A detailed record evidencing the claimant’s conduct is therefore crucial when seeking relief under these provisions. It is also important to properly document a Rule 49 offer in a manner that is easily understood and calculated to meet the percentage threshold under the Act.
The Board’s decision was based in part on Rules 4 and 141 of the OMB Rules of Practice and Procedure. It remains to be seen if the new rules adopted under the Local Planning Appeal Tribunal, set to replace the Board under Bill 139, will contain the same provisions with respect to costs in expropriation proceedings. For more information on Bill 139, read BLG bulletins Province Releases Bill 139 Regulations for Transition From the OMB to the New Local Planning Appeal Tribunal and Bill 139 — The Proposed End of the Ontario Municipal Board.
1 2016 Hearing Decision: Shergar Developments v. Windsor (City), 2016 CarswellOnt 2613 [Shergar 2016]; the Section 43 Review Decision is yet to be reported on WestlawNext, but can be found at www.omb.gov.on.ca [Shergar 2018]. The Board’s reasons for granting the Section 43 review are not reported (please contact the author).
2 Section 25, Expropriations Act, R.S.O. 1990, c. E.26.
3 R.R.O. 1990, Reg. 194: Rules of Civil Procedure under the Courts of Justice Act, R.S.O. 1990, c. C.43.
4 Rules 4 & 141, OMB Rules of Practice and Procedure.
5 See for example: Paciorka Leaseholds Ltd. v. Windsor (City), 2008 CarswellOnt 1531.
6 For example, in Bellwood v. Clearview (Town), 1994 CarswellOnt 5353, the Board concluded that it had authority to consider subsequent offers made after the Section 25 Offer in the determination of costs. In the same proceeding under, 1994 CarswellOnt 5474, partial costs were denied to a claimant on the basis of the subsequent offer.
7Shergar Developments Inc. v. Windsor (City), 2007 ONCA 666 affirming Shergar Developments Inc. v. Windsor (City), 2005 CarswellOnt 615.
8Shergar 2016, supra note 1 at para. 9. This calculation was complicated by the fact that a mortgage on the property in favour of CP Rail had not been discharged. The mortgagee advanced a claim pursuant to Section 17 of the Act, but it was settled prior to the hearing. CP Rail’s entitlement to compensation was assigned to the City.
9Ontario Municipal Board Act, R.S.O. 1990, c. O.28.
10Shergar 2018, supra note 1 at paras. 91-92.
11Shergar 2018, supra note 1 at para 68.

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75-5903. Department for aging and disability services established; secretary for aging and disability services; appointment and confirmation; department to receive and disburse federal older Americans act moneys; application of K-GOAL. (a) There is hereby created the Kansas department for aging and disability services. The Kansas department for aging and disability services shall be administered under the direction and supervision of the secretary for aging and disability services. The secretary shall be appointed by the governor, subject to confirmation by the senate as provided in K.S.A. 75-4315b, and amendments thereto, and shall serve at the pleasure of the governor. Except as provided by K.S.A. 46-2601, and amendments thereto, no person appointed as secretary shall exercise any power, duty or function as secretary until confirmed by the senate. In appointing the secretary, the governor shall consider, but is not limited to, persons suggested by the council and persons with responsible administrative experience in the field of gerontology. The secretary shall be in the unclassified service under the Kansas civil service act and shall receive an annual salary fixed by the governor.
The Kansas department for aging and disability services shall be the single state agency for receiving and disbursing federal funds made available under the federal older Americans act (public law 89-73), and amendments thereto, or other federal programs for the aging.
(b) The provisions of the Kansas governmental operations accountability law apply to the Kansas department for aging and disability services, and the department is subject to audit, review and evaluation under such law.
History: L. 1977, ch. 288, § 3; L. 1981, ch. 299, § 40; L. 1982, ch. 347, § 76; L. 1992, ch. 116, § 53; L. 2001, ch. 86, § 16; L. 2008, ch. 121, § 32; L. 2014, ch. 115, § 382; July 1.


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Appellate courts can, “affirm a decision from a lower tribunal that reaches the right result for the wrong reasons so long as there is any basis which would support the judgment in the record.” State Farm Fire & Cas. Co. v. Levine, 837 So. 2d 363, 365 (Fla. 2002) (citation and internal quotes omitted). This “tipsy coachman” doctrine reflects the “well-established rule that trial court decisions are presumptively valid and should be affirmed, if correct, regardless of whether the reasons advanced are erroneous.” Vandergriff v. Vandergriff, 456 So. 2d 464, 466 (Fla. 1984).
Lee v. Porter, 63 Ga. 345, 346 (Ga. 1879) (quoting the poem “Retaliation,” written in 1774 by Oliver Goldsmith, the Irish novelist, playwright, and poet). That poem was first mentioned in a Florida case in Carraway v. Armour & Co., 156 So. 2d 494, 497 (Fla. 1963).
In exploring the benefits and limitations of the tipsy coachman principle for appellees, who want the appellate court to affirm an order in their favor, we first note a distinction in the scopes of permissible arguments for appellees vis-à-vis appellants. For appellants, “in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.” Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982) (citations omitted). Thus, for appellants, “the specific legal ground upon which a claim is based must be raised at trial and a claim different than that raised below will not be heard on appeal.” Rodriguez v. State, 609 So. 2d 493, 499 (Fla. 1992). By contrast, appellees are not limited to the arguments that they made in the lower tribunal; “the appellee can present any argument supported by the record even if not expressly asserted in the lower court.” Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 645 (Fla. 1999) (citation omitted).
That statement does not give appellees carte blanche to make any and every conceivable argument. Appellate courts are required to affirm “if upon the pleadings and evidence before the trial court, there was any theory or principle of law which would support the trial court’s judgment.” Cohen v. Mohawk, Inc., 137 So. 2d 222, 225 (Fla. 1962) (e.s.). The Florida Supreme Court has made it clear that “the key to applying the tipsy coachman doctrine is that the record before the trial court must support the alternative theory or principle of law.” State Farm Fire & Cas. Co., 837 So. 2d at 365. In other words, “the appellee’s argument on appeal must be supported by evidence in the record.” State, Dept. of Revenue ex rel. Rochell v. Morris, 736 So. 2d 41, 42 (Fla. 1st DCA 1999) (citation omitted). The tipsy coachman doctrine is limited to cases where the result was “correct for any reason appearing in the record.” Suburban Med. Hosp., Inc. v. Department of Health & Rehab. Servs., 600 So. 2d 1195, 1197 n.3 (Fla. 3d DCA 1992) (e.s.; citation omitted).
If an appellee’s argument is outside the scope of the trial court litigation, it is not appropriate for the answer brief. See Robertson v. State, 829 So. 2d 901, 908-09 (Fla. 2002) (the appellate court “improperly relied upon the ‘tipsy coachman’ doctrine” when “the matter was never litigated on the basis of the Williams rule [and] the trial court never made determinations [on that basis]” so the “record [was not] sufficiently developed to allow affirmance on this alternate ground”); State Farm Fire & Cas. Co., 837 So. 2d at 365 (the tipsy coachman doctrine “cannot be applied in this case because the record does not provide an adequate basis for us to reach such [alternative] conclusion as a pure matter of law”).

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Krebs V. et al., Languages, Cyberspace and Migration, in NET.LANG, Réussir le Cyberespace Multilingue, C&F Editions, Caen, France, 2012.
Krebs V. et al., WSIS Stocktaking: Success Stories 2011, Case Study E-TIC.net: Use of Technology by Farmers in West Africa, International Telecommunications Union (ITU), Geneva, 2011.
Krebs, V. "Using both lessons learned and the overall concept of volunteerism as building blocks for multi-stakeholder approaches". Visions in Process II: The World Summit on the Information Society and the Road Towards a Sustainable Knowledge Society. Ed. Heinrich Boell Foundation. Berlin, Germany, 2005, pp. 69-76.
Krebs, V. "Volunteers: an Essential Building Block for a Society of Shared Knowledge." In The World Summit on the Information Society: Moving from the Past into the Future, preface Kofi Annan, ed. UN ICT Task Force, New York, 2005, pp.191-197.
Krebs, V. Anerkennung der Freiwilligenarbeit als Austauch unter Einbezug von Informations- und Kommunikationstechnologien als wirkungsvolle Ressourcen. In Peter Farago und Herbert Ammann, Monetarisierung der Freiwilligkeit, éd. Seismo, Zurich, 2005.
Krebs, V. Bilinguisme, interculturalité et communication politique, L’anglais et les cultures : carrefour ou frontières ? Droit et culture, éd. Harmattan, 54/2007.
Krebs, V. Motivations of cybervolunteers in an applied distributed computing environment: Malariacontrol.net as an example, First Monday, Peer-Reviewed Journal on the Internet, Volume 15, Number 2 - 1 February 2010.
Krebs, V. The Impact of the Internet on Myanmar, First Monday, Peer-Reviewed Journal on the Internet, originally published in May 2001, Volume 6, Number 5 - 7 May 2001.
Krebs, V. "Cyberspace between fiction, perception and reality: the example of the volunteer movement online". In session "Uncertainties and Fictional Realities in Communication, an Interdisciplinary Approach", Modena, Ivana. 2nd European Communication Conference, European Communication Research and Education Association (ECREA), Barcelona, 25-28 November 2008, Abstract Book, p. 396.
Monitoring the WSIS Targets, A mid-term review, World Telecommunication/ICT Development Report 2010, International Telecommunication Union, 2010.
Volunteer Family Report, phase 1, World Summit on the Information Society, 2003.
Final Report of the International Symposium on Volunteering (ISV 2001, November 2001), éd. ICVolunteers, 2001.
Langues et Migrations, étude sur l’accompagnement linguistique des migrants à Genève, ICVolontaires, 2008.
E-TIC.net Agri Guide, 2010/11, in progress.

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In this work a defined co-culture of the lactic acid bacterium Lactobacillus zeae and the propionate producer Veillonella criceti has been studied in continuous stirred tank reactor (CSTR) and in a dialysis membrane reactor. It is the first time that this reactor type is used for a defined co-culture fermentation. This reactor allows high mixing rates and working with high cell densities, making it ideal for co-culture investigations. In CSTR experiments the co-culture showed over a broad concentration range an almost linear correlation in consumption and production rates to the supply with complex nutrients. In CSTR and dialysis cultures a strong growth stimulation of L. zeae by V. criceti was shown. In dialysis cultures very high propionate production rates (0.61 g L-1h-1) with final titers up to 28 g L-1 have been realized. This reactor allows an individual, intracellular investigation of the co-culture partners by omic-technologies to provide a better understanding of microbial communities.
Today most industrial processes are mono-culture processes due to a high degree of control, reproducibility and predictability. But mixed cultures arouse more and more interest. The high potential of mixed culture fermentations for industrial applications has been recently reviewed (Bader et al. (2010), Sabra et al. (2010)). The authors stress the advantages of mixed cultures beside others in respect of wide substrate and product spectrum. These advantages may be applied e.g. in the fields of food and bioenergy.
Besides their technological relevance microbial communities have been investigated over the past decades due to their biological relevance in nature. Usually no mono-culture will occur in natural environments. In fact there exist complex microbial communities as biofilms that play an important role e.g. in human health (Bryers (2008)).
One approach in understanding such complex communities is to investigate a defined part of this community, i.e. a defined co-culture of two organisms. In fact there exist a lot of studies with defined co-cultures including two microorganisms (e.g. Gerritse et al. (1990), Mikx and Vanderhoeven (1975), Tatton et al. (1989)). To have reproducible results for metabolic analysis experiments in a continuous stirred tank reactor (CSTR) are preferred. Usually substrate-limited conditions have to be investigated to prevent a wash-out of one organism, beside that a general problem of these studies is that no individualized study of both organisms is possible. To analyse the growth behaviour in defined co-cultures in a single reactor is possible with sophisticated molecular-biology methods (e.g. Schmidt et al. (2007)), but an individualization in different compartments would be preferable to investigate also intracellular processes.
To solve the latter problem, membrane-associated separation of the organisms in one study has been realized (Egland et al. (2004)). In fact it was shown that bacteria do not only communicate by direct cell-cell-contact but also via low molecular metabolites that may pass through dialysis membranes (Egland et al. (2004), Kolenbrander et al. (2010)). One approach to investigate a co-culture with separating the cells by a membrane is involving two reactors connected with each other by a membrane module. Manjarrez et al. (2000) used a hollow fiber module to investigate the amensalistic-type interaction between two Saccharomyces strains. They stress the superiority of this type of system over the EcoloGen system of New Brunswick Scientific (Edison, NJ, USA) described in Tannenbaum and Kornfeld (1974). The advantage is that in their hollow-fiber module system high mixing rates can be established that are important for fast interactions. But a problem for hollow fiber modules comes with their tendency to get blocked at higher cell densities.
The dialysis membrane reactor (Poertner and Maerkl (1998)) solves both problems: High mixing rates and high cell densities can be reached. In fact, up to now it was mostly used for high cell density fermentations (e.g. Markl et al. (1993)). The use and advantages of such a system for the investigation of a defined co-culture have been described (Pestchanker and Ercoli (1997)), but to our best knowledge not realized up to now.
A mixed culture approach with industrial applicability is propionic acid production. Lactobacillus zeae and Veillonella criceti have been described as a defined co-culture for propionate production with a high potential in the industrial environment (Mays and Fornili (1985), Sabra et al. (2012)).
In this work we use the dialysis membrane reactor for a defined co-culture for the first time with the example of the aforementioned co-culture. L. zeae will convert glucose to lactate which is the substrate of V. criceti, producing propionate and acetate. V. criceti is not able to use carbohydrates as a substrate, this leads to a commensalistic co-culture. We show the high potential for metabolic interaction studies with the membrane reactor and discuss about the possibility of the defined co-culture for propionic acid production in a CSTR process. So far these studies have mostly been performed with Propionibacterium species. It was a goal to find out cultivation conditions for this coculture to reach a high propionate concentration and to evaluate its feasibility for an industrial application.
Veillonella criceti (DSM20734) and Lactobacillus zeae (DSM20178) were obtained from DSMZ (German Collection of Microorganisms and Cell Cultures, Braunschweig). The media for anaerobic precultivation contained KH2PO4 15 g L-1, K2HPO4 5 g L-1, Cystein.HCl × H2O 0,5 g L-1, peptone 2 g L-1, yeast extract 2 g L-1. For V. criceti pottasium lactate 10 g L-1 and resazurin 1 g L-1 were added. Anaerobiosis was achieved by nitrogen sparging and sealing with butyl-rubber stoppers of the serum bottles (50 mL medium in 100 mL bottles). After autoclaving, Na2S × 9 H2O 1 mM was added for V. criceti, for L. zeae glucose 10 g L-1 was added. Precultivation and fermentation were performed at 37°C, pH 6.0.
Fermentation medium was basically of the same composition, but had varying amounts of complex nutrients and carbon source as mentioned in the text. Yeast extract and peptone were added simultaneously in equal amounts to result in a certain concentration (g L-1).
For CSTR fermentations, a 2l foil fermentor from Bioengineering (Wald, Switzerland) was used which is equipped with temperature and pH control. The fermentor was sparged before inoculation with nitrogen for at least 30 min. For titration, a 5 M NaOH solution was used.
For the co-culture experiments in the dialysis reactor a 7l foil fermentor from Bioengineering (Wald, Switzerland) was used (Figure 1). The working volume was 5 l (inner chamber 1.1 l, outer chamber 3,9l). The inner chamber has a Cuprophan-made membrane jacket (Table 1) with a 10 kDa cut-off, that allows diffusion of soluble medium components and metabolites over the membrane. For more details on this system see Poertner and Maerkl (1998).
(a) Picture of the running membrane dialysis reactor from Poertner and Maerkl (1998 ). (b) Set-up of the dialysis reactor for the defined co-culture. The “inner chamber” (shows a higher liquid level) is separated from the “outer chamber” by a diffusion membrane. For more details seePoertner and Maerkl (1998 ).
a Determined at T = 30 ° C, stirrer speed outer chamber 1500 rpm, inner chamber 1000 rpm.
Optical density of the cells was measured at 600 nm. Samples were filtered through 0.2 μ m filters. Glucose, lactate, propionate and acetate were measured by HPLC (Kontron, Germany) with an Aminex HPX-87H column (300 × 7.8 mm) at 60°C and with UV and RI detectors. H2SO4 (5 mM) was used as the mobile phase.
First coculture experiments in a common stirred tank reactor were performed. Experiments started with a low concentration of complex nutrients, carbon source and a low dilution rate. Successively the glucose concentration was increased to reach higher product concentrations. Since nutrient limitations could be expected for these organisms, complex nutrients should be adapted to improve growth of one or both bacteria. Finally, by raising the dilution rate, the productivity of the process should be enhanced.
Cultivated with 0.5 g L -1 yeast extract/peptone, 5 g L -1 glucose in the feed and a dilution rate of D = 0.1 h -1 V. criceti, but not L. zeae, was washed out from the bioreactor. Neither acetic nor propionic acid was produced. Obviously complex nutrients are strongly limited. L. zeae did grow, but the final lactic acid concentration was very low (0.3 g L -1 ), glucose was not consumed completely. This shows the high nutrient demand from both bacteria with an advantage to survive for L. zeae under these cultivation conditions.
After this initial experiment the yeast extract/peptone (YP)-concentration was increased to 3 g L -1 , the lactic acid concentration increased due to production by L. zeae to 3 g 3 g L -1 , but still glucose was not completely consumed. To ensure anaerobic conditions by reducing the redox potential (reactor was not sparged with nitrogen), cystein was added, but this did not influence biomass and lactate production.
This changed clearly after a second inoculation of V. criceti and led to steady state (ST) 1 (only coculture steady states are considered). Now the concentration of complex nutrients was high enough for the cultivation of both organisms simultaneously. Glucose and consequently produced lactic acid were converted to propionic acid. The propionate/acetate-ratio was 1.29 mol mol -1 .
After the glucose concentration in the feed was doubled, the mixed culture was strongly influenced (Figure 2, ST 2). Since lactic acid concentration increased, L. zeae adapted faster to the new growth conditions (phase 1, Figure 2). V. criceti, most probably due to its lower maximal growth rate, converted this lactic acid with a time delay (phase 2, Figure 2).
Section of the CSTR experiment with the co-culture of L. zeae and V. criceti . At constant dilution rate and YP-concentration the glucose concentration in the feed was doubled (shift from ST 1 to ST 2, see Table 2). L. zeae adapted faster to the new growth conditions (phase 1), but after more than 10 medium exchanges a stable steady state was reached.
At the half residence time (5 h, ST 3) glucose consumption was incomplete, but the produced lactic acid was completely converted in acetic and propionic acid. The reason for the incomplete glucose consumption was a nutrient limitation, as can be seen after doubling the YP-concentration in the feed (ST 4). The glucose concentration was reduced from 6 to 2 g L -1 by consumption of L. zeae. Lactic acid again was completely consumed.
The glucose was entirely converted to lactic acid at a YP-concentration of 9 g L -1 (ST 5). The propionate concentration rose to 8 g L -1 , the propionate/acetate-ratio was 1.21 mol mol -1 .
The last steady state (doubling of the glucose in the feed, ST 6) resulted again in a sequential adaption of L. zeae and V. criceti as shown in Figure 2. The almost linear correlation between lactate consumption and propionate/acetate production with the concentration of complex nutrients (Figure 3) stresses the high nutrient demand and the double limitation by carbon source and nutrients, respectively.
Volumetric Rates in the defined mixed culture of L. zeae and V. criceti .
In an attempt to reach a high propionate concentration, the co-culture fermentation was carried out at a dilution rate of 0.06 h -1 , and with 5 g L -1 YP and 50 g 50 g L -1 glucose in the feed (data not shown). No steady state was reached and strong oscillations were observed. In fact for all the data points given in Table 2 a 10-fold medium exchange was necessary to reach a steady state. Theoretically without any oscillation only four to five medium exchanges should be necessary.
At a YP-concentration of 0.5 g L -1 V. criceti was washed out.
Cultivation of L. zeae in the dialysis reactor showed slow growth and production of lactate (Figure 4). After 37 h of cultivation only 6 g L -1 lactic acid has been produced, the OD was at this time 9. Both values are low in comparison to the mixed culture fermentations in dialysis processing.
Cultivation of L. zeae in the dialysis reactor. YP concentration was 3g L -1 .
In experiments in serum bottles it turned out, that V. criceti is substrate inhibited (Sabra et al. (2012)). Therefore the initial lactate concentration in the reactor was 20 g L -1 . When lactate was consumed in the inner chamber, it was added in pulses (Figure 5). With this process control a propionate concentration of ∼ 17 g L -1 could be achieved, the acetate concentration was ∼ 10 g L -1 . This corresponds to a propionate/acetate-ratio of 1.27 mol mol -1 . The optical density of V. criceti was 25, the production rate was high as well (0.39 g L -1 h -1 ). The production rate of P. acidiipropionici usually is much lower (e.g.Sabra et al. (2012)). A summary of the mono- and co-culture experiments in the dialysis reactor is given in Table 3.
Cultivation of V. criceti in the dialysis reactor. YP concentration was 3 g L -1 . Lactate was added in pulses due to substrate inhibition of V. criceti.
a related to the whole reactor.
b value related to lactate.
c not detected, cell aggregation of V. criceti.
First L. zeae was inoculated in the inner or outer chamber, after base consumption was detected V. criceti was inoculated in the other (outer or inner) chamber. This inoculation strategy was followed in all co-culture experiments. YP concentration in the first experiments was 3 g L -1 . Fermentations were stopped, when propionate production in the chamber of V. criceti stopped. In the first combination L. zeae was inoculated in the inner chamber (Figure 6). With a high growth rate (0.33 h -1 ) it reached an OD600 of 22, meaning a clear improvement in comparison to the mono-culture experiment. V. criceti in the outer chamber grew comparably to the corresponding mono-culture experiment (0.22 h -1 , OD 600 of 5 after 25 h). A membrane rupture after 30 h led to the stop of the fermentation. All glucose was consumed then, lactic acid from the inner chamber could have been converted to propionic/acetic acid in the outer chamber, where lactic acid was limited all the time. Till fermentation termination 9 g L -1 propionic acid with a production rate of 0.39 g L -1 h -1 had been produced. This was comparable to the mono-culture experiment. Interesting is the lower propionate/acetate-ratio of 1.13 mol mol -1 .
Cultivation of L. zeae (inner chamber) and V. criceti (outer chamber) in the dialysis reactor. YP concentration was 3 g L -1 . After 30 h there was a membrane rupture, leading to the abrupt change for the last time point. The fermentation was terminated then.
With L. zeae in the outer chamber the OD 600 of V. criceti reached a value of 8 (Figure 7). Since the volume of the outer chamber is four times more than in the inner chamber, the total biomass of V. criceti was reduced in comparison to the previous experiment. The propionate production rate (0.13 g L -1 h -1 ) and the final propionate concentration (5 g L -1 ) were lower as well. In comparison to the mono-culture experiment a more effective propionate production (propionate/acetate ratio 1.40 mol mol -1 ) was attended with a worse biomass production. In this fermentation the lactic acid concentration in the V. criceti-chamber was never limited. When the growth of V. criceti stopped, the concentration was 10 g L -1 , a non-inhibiting concentration.
Cultivation of V. criceti (inner chamber) and L. zeae (outer chamber) in the dialysis reactor. YP concentration was 3g L -1 .
P: product; X: biomass. α: parameter for growth-associated production. β: parameter for non-growth associated production.
In the experiments above neither glucose nor lactic acid have been completely consumed. To improve the co-culture experiments in this respect it was therefore decided to increase the concentration of complex nutrients was increased to 10 g L -1 .
With V. criceti in the outer chamber the final propionate concentration was elevated significantly to 19 g L -1 (Figure 8). The maximal production rate was 0.26 g 0.26 g L -1 h -1 and the molar ratio of propionate to acetate was 1.46. Whereas the productivity in comparison to the corresponding experiment with lower YP-concentration decreased, the final propionate concentration increased as well as the propionate/acetate-ratio.
Cultivation of L. zeae (inner chamber) and V. criceti (outer chamber) in the dialysis reactor. YP concentration was 10 g L -1 .
Again lactic acid was not completely consumed. This was surprising since a nutrient limitation was implausible due to the high YP-concentration.
Finally the co-culture combination with L. zeae in the outer chamber and V. criceti in the inner chamber with high nutrient supply was examined (Figure 9).
Cultivation of V. criceti (inner chamber) and L. zeae (outer chamber) in the dialysis reactor. YP concentration was 10 g L -1 .
Preeminent result is the very high propionate production rate of 0.61 g L -1 h -1 . Between the 13th and 33rd hour 20 g L -1 propionic acid has been produced in the inner chamber.
In this experiment not only the propionate production rate, but the final biomass and propionate/acetate ratio was higher than in the monoculture experiment.
In addition to the results given in Table 3 the propionate-glucose-yield (mol mol -1 ) is shown. Theoretically it should be 1.33 mol mol -1 .
Since the propionate/acetate-ratio was in no experiment 2 mol mol -1 , the maximal propionate/glucose-yield could not be reached. Interestingly both ratios were not directly correlated. Obviously growth and substrate consumption in L. zeae depends on the complex nutrient availability which is influenced by the co-culture partner.
In this study a defined co-culture of a lactic acid bacterium, L. zeae, and a propionate producer, V. criceti, has been realized and investigated for the first time in a dialysis chamber reactor.
Following the classic Methyl-Malonyl-CoA pathway, the ratio should be 2.0 mol mol -1 (see equation below).
In CSTR experiments an almost linear correlation of production rate and complex nutrient supply was shown (Figure 3). This may be used for further improvement of the process. Perhaps the use of very high concentrations of complex nutrients may lead to a high propionate concentration in CSTR experiments. From the industrial point of view then the economic aspect would become less attractive. For high titers batch or fed-batch processes, perhaps with cell immobilization seem much more favourable to this end (Colomban et al. (1993)).
In the dialysis cultures with high nutrient supply very high propionate production rates (0.61 g L -1 h -1 ) with final titers up to 28 g L -1 have been realized.
Simplified scheme of propionate metabolism in Veillonella spec.: In contrast to Propionibacterium spec., in Veillonella spec. there is no transcarboxylase . The transcarboxylation is realized via a pyruvate-carboxylase and a methyl-malonyl-CoA-decarboxylase. This is less energy efficient. 1 mol ATP is consumed by the pyruvate-carboxylation, two third can be recovered by the fumarat-reduction, one third via methylmalonyl-CoA-decarboxylation. As in the acryloyl-pathway there is no net ATP production. The regeneration of NADH2 to NAD can be realized by hydrogen production, which is more energy efficient (Denger and Schink (1992)).
In Veillonella parvula this pathway is less effectiv than in Propionibacterium freudenreichii. V. parvula gets 0.33 mol ATP per mol lactate, P. freudenreichii 0.78 mol ATP (Seeliger et al. (2002)).
This less effective energy recovery compensates Veillonella spec. by higher growth and substrate consumption rates (Seeliger et al. (2002)).
The energy yield per mol lactate is then comparable in both organisms. When the nutrients are limited, the hydrogen production rises as can be seen from both the CSTR and the dialysis reactor experiments. Although we did not measure hydrogen directly we could not detect any other metabolite by HPLC. Hydrogen production explains well our results in agreement with similar investigations (Denger and Schink (1992); Seeliger et al. (2002)).
Both organisms have a high nutrient demand. In the experiment with a low nutrient supply, the faster growing L. zeae outcompetes V. criceti for the complex nutrients. V. criceti has a high demand for complex nutrients as vitamins, amino acids and even nucleobases (Durant et al. (1997)). For some of those nutrients V. criceti has obviously a higher demand than L. zeae, since L. zeae can grow well on hydrolyzed wheat straw, but V. criceti cannot (Sabra et al. (2012)).
The metabolism of L. zeae is markedly stimulated by the co-culture partner independent of nutrient limitations and experimental setup. This behaviour could be investigated in more detail in the dialysis chamber reactor due to the local separation of both microorganisms. A reason for the strong improvement of the growth of L. zeae may be, that V. criceti reduces the redox potential of the medium by hydrogen production. The reduced redox potential may have a strong impact on microorganisms (van Hoek and Merks (2012)).
Surprisingly V. criceti stops growth in the co-culture experiment with high nutrient supply when it is cultured in the outer chamber - although carbon and most probably complex nutrients are available. We suggest the accumulation of an inhibiting secondary metabolite, that develops its inhibiting potential not until a critical concentration is reached, probably comparable to quorum sensing-signals. This interesting phenomenon should be investigated in future studies in more details. The dialysis chamber reactor is ideal for the investigation of such phenomena which are based on low molecular weight “communication molecules”. The communication molecule may become only relevant at higher cell densities.
Investigations in the dialysis reactor in CSTR will give more information. Still the experimental requirements, especially for medium (50 L for one steady state assuming 10 medium exchanges as shown in the continuous culture), are very high and we now undergo efforts to realize these experiments.
The overall strength of this system for co-culture investigations is the local separation of microorganisms. This allows not only the investigation of growth behaviour as performed in this study, but also a detailed observation of a singularised mircroorganism by genomic, proteomic and transcriptomic approaches.
With these data, mathematical models can be established to describe the kinetics of cell growth and metabolism of the defined microbial community. For a more fundamental understanding of the microbial community, intracellular metabolic fluxes should be estimated. Metabolic fluxes of microbial communities have been seldom studied, therefore the existing methods for flux estimation need to be adapted and further developed. The results from kinetic and flux analysis should help to identify possible limiting step(s) and key parameters for the development and optimization of the novel bioprocesses for propionic acid production.

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


Richard N. KAPRES, Appellant, v. Charles HELLER, Randy Richard, Kirk Butryn, Anthony Gatti, Michael DeCapua, Michael Cole, John Luzier, Curtis P. Aldrich and Larry L. Kifer t/d/b/a Aldila Enterprises, Robert Pasko, John Galeza, Steve Amsdall, Brian Reese, Robert McCarthy, Brett Black, Mike Flinchbaugh, Richard L. Martin and Sharron Stroup Martin, Gregg Shapiro, Paul Sever, Christopher Iezzi, John Besic, Don Scovotti, Mark Allison, Phi Sigma Fraternity, Sidney Miles, Appellees, v. Donald J. BEICHNER and Jeff Cingle, Additional Appellees.
*552 Peter B. Skeel, Swensen, Perer & Johnson, Pittsburgh, for Sidney Miles.
Louis Anstandig, Anstandig, Levicoff & McDyer, Pittsburgh, for Curtis Aldrich and Larry Kifer.
Thomas R. Doyle, Simasek, Hutton & Doyle, Pittsburgh, for Brian Reese.
Elizabeth T. Winson, John M. Giunta, C. Leon Sherman & Associates, Pittsburgh, for Michael DeCapua.
Harry Stump, Pittsburgh, for appellant.
Peter Breslauer, David L. Grove, Philadelphia, for amicus curiae Susan C. and Frederick F. Muntz.
Sibyl S. McNulty, Frederic E. Orlansky, Riley & DeFalice, P.C., Pittsburgh, for John Galeza.
Dara A. DeCourcy Zimmer, Kunz, Loughren, Hart, Lazaroff, Trenor, Banyas & Conaway, P.C., Pittsburgh, for Brett Black and Mike Flinchbaugh.
*553 Anthony G. Marsili Mears & Smith, Greensburg, for Christopher Iezzi.
Paul W. Roman, Jr., Dickie, McCamey & Chilcote, Pittsburgh, for Randy Richard.
John A. Robb, Jr., Robb, Leonard & Mulvihill, Pittsburgh, for John Luzier.
Frederick Egler, Jr., Edward L. Russakoff, Egler, Garrett & Egler, Pittsburgh, for Robert Pasko.
Alan S. Baum, Grigsby, Gaca & Davies, Pittsburgh, for Richard and Sharon Martin.
Arthur J. Murphy, David L. Haber, Pittsburgh, for Gregg Shapiro.
David R. Johnson, G. Jay Habas Thomson, Rhodes & Cowie, Pittsburgh, for Paul Sever.
Robert J. Marino, Dickie, McCamey & Chilcote, Pittsburgh, for Jeff Cingle.
James R. Miller and Edward R. Miller, Dickie, McCamey & Chilcote, Pittsburgh, for Robert McCarthy.
Judy A. Olmstead and Andrew W. Blenko, Reale, Fossee & Appelbe, Pittsburgh, for Steve Amsdall.
Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.
The question before the Court is whether a minor can be held liable under the social host doctrine for furnishing alcohol to another minor, who is subsequently injured as the proximate result of his intoxicated condition. For the reasons that follow we find no basis for liability between minors under the social host doctrine.
*554 On March 21, 1986 the plaintiff, a student at Clarion University, attended three parties in Clarion, Pennsylvania hosted by the minor defendants. At one of the parties the plaintiff was required to pay for admission. He consumed alcohol at each of the parties. While walking away from the last party the plaintiff was struck by an automobile and suffered various injuries. He was 19 years of age at the time and had a blood alcohol level of 0.196.
The plaintiff then commenced the present action against various defendants for negligently serving him alcohol which caused his intoxication. Plaintiff asserts that his intoxicated condition was the proximate cause of his being struck by an automobile driven by an additional defendant. The minor defendants each filed motions for summary judgment which were granted by the trial court. The appeals from the various motions for summary judgment regarding the minor defendants were consolidated in the Superior Court and the judgment of the trial court was affirmed, with one judge dissenting. 417 Pa.Super. 371, 612 A.2d 987. This Court granted the plaintiff's Petition for allowance of Appeal.
*555 Summary judgment is properly granted where `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.' Pa. R.C.P. 1035(b). `The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.' Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991). Summary judgment may be entered only in those cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 369, 562 A.2d 279, 280. (1989).
Pennsylvania State University v. County of Centre, 532 Pa. 142, 615 A.2d 303, 304 (1992).
Summary judgment was granted upon the trial court's determination that the minor defendants who provided alcohol to the minor plaintiff, owed no duty to the minor plaintiff for injuries he sustained as a result of his intoxication, thus, the plaintiff could not recover against the defendants as a matter of law. The plaintiff asserts that summary judgment should not have been sustained arguing that as a minor a duty is owed to him under the social host doctrine consistent with this Court's opinion in Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983). To resolve this question we must review the social host doctrine as developed in Pennsylvania.
Thus, the great weight of authority supports the view that in the case of an ordinary able bodied man it is the consumption of the alcohol, rather than the furnishing of the alcohol, which is the proximate cause of any subsequent occurrence. This is in accord with the recognized rule at common law. See Anno: Damage from Sale or Gift of Liquor or Drug. 97 A.L.R.3d 528 § 2 at 533 (1980); 45 Am.Jur.2d Intoxicating Liquor § 553. We agree with this common law view, and consequently hold that there can be no liability on the part of a social host who serves alcoholic beverages to his or her adult guests.
Klein, 504 Pa. at 148, 470 A.2d at 510-11. Accordingly, this Court found the Gilligans had no liability for the injuries sustained by Klein, nor for those suffered by Raysinger.
On the same day that this Court announced the rule in Klein rejecting the theory of social host liability, we also announced an exception to Klein for those situations where alcohol is furnished to a minor by an adult. That exception was created in Congini, the case upon which the plaintiff herein relies.
The plaintiff in Congini was an eighteen year old employee of the defendant who had consumed alcohol at a company Christmas party. Upon driving himself home from the party he drove into the rear of another vehicle. As a result of the accident he suffered various injuries rendering himself permanently disabled.
In Congini, this Court found that the rule of Klein which places the responsibility upon an adult for the consequences of his or her own consumption of alcohol does not apply in those situations where an adult furnishes alcohol to a minor. This exception was carved out essentially on the basis that minors are judged to be incompetent to handle alcohol. Thus, public concerns for the safety of minors places a duty upon an adult to ensure that a minor is not furnished with alcohol. Congini 504 Pa. at 162-63, 470 A.2d at 518. This Court, however, did *557 not wholly release the minor from responsibility for consuming alcohol however, as the Court further held that the minor's contributory negligence must also be considered. Id.
In the present case the Plaintiff argues that we should hold the minor defendants to the standard required of adults in Congini, while providing to him the protections specially afforded minors under the same principle. The illogic of this argument is apparent on its face. Both the plaintiff and the defendant are considered under the law incompetent to handle alcohol. Both the plaintiff and the defendant would be responsible under the law for their own actions in furnishing or consuming alcohol. Thus, it is more logical and consistent with the prevailing view on social host liability in this Commonwealth to find that one minor does not owe a duty to another minor regarding the furnishing or consumption of alcohol.
The exception carved out in Congini remains valid in those cases where an adult, who under the eyes of the law is presumed to know the effects of alcohol, furnishes alcohol to a minor, who is presumed under the law incompetent regarding the effects of alcohol. That exception has no validity in the instant case.
Accordingly, the decision of the Superior Court is affirmed.
LARSEN, J., did not participate in the consideration or decision of this case.
PAPADAKOS, J., files a dissenting opinion which is joined by MONTEMURO, J.
*558 MONTEMURO, J., who was an appointed Justice of the Court at the time of argument, participated in the decision of this case in his capacity as a Senior Justice.
I dissent. Persons under the age of 21 (here, between 18 and 21) who provide alcohol to others under the age of 21 should be held liable for resultant injuries under the social host doctrine spelled out in Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983).
In Congini, the source of social host liability for adults serving alcohol to minors was the Crimes Code, specifically 18 P.S. § 6308. Because all persons under 21 (including juveniles) are also potentially criminally liable as accomplices for furnishing alcohol to others under 21, they should be held civilly liable as well. The civil immunity conferred by the majority should not exist for social hosts under 21 where they could face criminal responsibility for the same acts. The opposite result would be more in keeping with a public policy that recognizes the pervasive danger of alcohol abuse, imposes per se liability on adult social hosts who serve alcohol to minors (under Congini), and that, moreover, treats 18 to 21 year olds as adults for most purposes (the hosts in the instant case were all between 18 and 21 when the alcohol in question was served). Nothing in our later decision in Alumni Association v. Sullivan, 524 Pa. 356, 572 A.2d 1209 (1990), incidentally, lends support to the result reached by the majority today. For the reasons set forth above, I would reverse the decision of the Superior Court majority in this case and I would rule in accordance with Judge Beck's dissenting opinion.
MONTEMURO, J., joins this dissenting opinion.
 The social host doctrine is a general phrase used to designate a claim in negligence against a person (the host) who provides alcoholic beverages to another (the guest), without remuneration, where the guest then sustains injuries, or causes injury to a third person as a result of his intoxicated condition. The theory is that the host should be liable for the injuries as he is the person who furnished the intoxicating beverages. See, Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983) (compiling definitions of the social host doctrine utilized in various jurisdictions).
 Under the Pennsylvania Motor Vehicle Code a person is presumed to be under the influence of alcohol with a blood alcohol reading of 0.10%. 75 Pa.C.S. § 1547(d)(3).
 The original defendants can be divided into three categories. One defendant is an adult tenant within one of the apartments where a party was held on the night of March 21, 1986. The second group of defendants are landlords of the premises where the parties were held on March 21, 1986. The third group of defendants, and the only parties involved in the present appeal, are the minors who sponsored the various parties on March 21, 1986, and are alleged to have actually furnished alcoholic beverages to the plaintiff. The motions for summary judgment on behalf of the adult tenant and each of the landlords were granted by the trial court. Those Orders were affirmed by the Superior Court and are not subject to this appeal.
 This Court's earlier decision in Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973), was not dispositive of the social host liability issue as it dealt specifically with the question of whether a cause of action could be maintained under the Pennsylvania liquor code, 47 P.S. § 4-493(1), against non-licensed persons who furnish alcoholic beverages for no remuneration.
 See, 18 Pa.C.S. § 6308(a) provides: "A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages . . ."
 We recognize that the United States Court of Appeals for the Third Circuit has come to the opposite conclusion on this issue in Fassett v. Delta Kappa Epsilon, 807 F.2d 1150 (3rd Cir.1986). In that case the Circuit Court concluded that this Court would interpret Congini to apply in situations where one minor furnishes alcohol to another minor. However, the interpretation proposed by the Third Circuit Court of Appeals as to Pennsylvania law on this subject is not binding and, with all due respect, is inconsistent with our conclusions as stated herein.


This provision corresponds with Art.4 of the EU Charter which has the same wording.
Theoretically, treatment must reach an intense level of severity for a challenge under this provision to succeed. The Strasbourg authorities originally set a high threshold for treatment falling within the scope of Art.3 ; it must exceed “a certain roughness of treatment” (The Greek Case (1969) Application Nos 00003321-3/67, 11 YbK of the ECHR 501).
In principle the rule is that conditions in the home State, however appalling, do not engage the responsibility of the deporting country. However, Art. 3 is often cited in deportation and asylum cases and allegations of institutional “torture” and “degrading treatment” in the receiving states, advanced by intervening NGOs, are hard to disprove.
The Strasbourg Court has recently started to distinguish “torture” from “inhuman and degrading treatment” as separate elements of Article 3 although the results in practice are the same. In the case of Gäfgen v. Germany (1 June 2010) the Grand Chamber considered that police officers threatening the applicant imminent pain for the purpose of extracting information constituted “inhuman treatment” falling within the scope of Article 3. But they also held that this method of interrogation did not reach the level of cruelty to attain the threshold of torture under that provision. On the other hand, the bar for offending treatment may being set somewhat lower according to more recent case law from Strasbourg. For example, the Court found degrading treatment in breach of Article 3 when a person was deprived of his spectacles (Slyusarev v Russia 20 April 2010) even though there was no evidence of impairment to the eyes caused by the delayed replacement. The fact that the applicant could not read or write normally was sufficient to amount to treatment in breach of Art.3. When riot police burst into schools used as shelters by G8 protestors and meted out punishment with riot sticks, this was found to have reached the level of torture under Art.3: Cesaro v Italy, 7 April 2015. Where a prisoner with chronic health conditions and a medical note recommending the avoidance of cigarettes was confined almost all day in overcrowded cells where the other occupants smoked, the passive smoking element was relevant in the finding of conditions incompatible with Art. 3 (Florea v Romania 14 September 2010). The Court has also stated that states are under an obligation to take measures to protect prisoners from passive smoking where their state of health so requires (Elefteriadis v Romania, 25 January 2011).
Article 3 imposes an obligation on the state to ensure the health and well-being of persons deprived of their liberty, although they are not expected to provide equivalent health care in prisons as compared with the outside world (Aleksanyan v Russia, 22 December 2008). In McGlinchey v UK the failure by the prison medical staff to properly monitor the state of the applicant, who was vomiting repeatedly under withdrawal symptoms, and suffering from dehydration, disclosed treatment in breach of Article 3 (29 April 2003). Outside the prison walls there is less case law, and the threshold is higher; for example lack of access by cancer patients to potentially life-saving experimental drugs which were not yet authorised did not amount to treatment in breach of Art.3 (Hristozov v Bulgaria, 13 November 2012). Leaving an asylum seeker to fend for himself on the street for over a year, without provision for shelter, food or other needs, breached Art.3 in MSS v Greece and Belgium (2011).
Domestic courts may be rowing back from their earlier generous approach to Article 3 claims – see R (on the application of EW) v Secretary of State for the Home Department,  EWHC 2957 and our post on the case. More recently, the Court of Appeal has confirmed that foreign nationals may be removed from the UK even where their lives will be drastically shortened due to a lack of healthcare in their home states. Removal in those circumstances does not breach Articles 3 or 8 ECHR except in the most exceptional cases (GS (India) and Ors v SSHD  EWCA Civ 40. D v UK is rarely followed in current times, as signatory states’ medical and social services become more pressed and cash strapped.
However it remains the case that Article 3 has been interpreted to cover not only state sponsored persecution but the acts of private individuals as well, since it obliges governments not to return or deport anyone to a destination country where they might be exposed to danger, whether at the hands of state agents or rebel groups. This interpretation of Article 3 has prevented the deportation of a convicted armed robber to Somali because of the risk that he might get caught up in the civil war there – see Ahmed v Austria (1997) 24 EHRR 278.
Chahal v UK (1997) 23 EHRR 413 set a strong precedent for preventing states from deporting individuals to countries where they risk treatment in breach of Article 3. In Saadi v Italy (2008) No. 37201/06 the Court emphasised that Art.3 imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to inhumane treatment. The conduct of the person concerned, however undesirable or dangerous, cannot be taken into account. The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill treatment that the person may be subject to on return. In Othman (Abu Qatada) v UK  ECHR 56 the Court accepted that the UK and the Jordanian governments had made genuine efforts to provide detailed assurances that the applicant would not be ill treated on his return to Jordan; although in fact the applicant won on the basis of Article 6, as the Court found that he faced a flagrant denial of his right to a fair trial if deported.
The Strasbourg Court has also attracted criticism from high places for applying Article 3 to the way Parliament regulates the “reasonable chastisement” of children by their parents in the home (A v UK (1999) 27 EHRR 611).


HOMEQ SERVICING, ET AL., DEFENDANTS.
Plaintiff, proceeding pro se, seeks to rescind a mortgage, recover damages and receive injunctive and declaratory relief. Defendant HomEq Servicing ("HomEq") removed this action from state court based on federal question jurisdiction and filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff did not file an opposition. For the reasons which follow, HomEq's motion is GRANTED WITH LEAVE TO AMEND.
Plaintiff alleges that he owned a real property at 8525 Park Run Drive in San Diego, California ("Property"). In December 2005 he executed an Adjustable Rate Note promising to pay New Century Mortgage ("New Century") $544,000. The note was secured by a Deed of Trust on the Property. (HomEq Notice of Lodgment Ex. 1.)*fn1 HomEq was the servicer on the loan. (See id. Ex. 4.) On December 4, 2008 a notice of default was recorded. (Id.) On March 30, 2009 the Property was foreclosed. (Id. Ex. 8.) Plaintiff alleges that New Century and HomEq violated the Truth in Lending Act, 15 U.S.C. §§ 1601 et seq. ("TILA"), the Real Estate Settlement Procedure Act, 12 U.S.C. § 2601 et seq. ("RESPA"), the Home Ownership and Equity Protection Act, 15 U.S.C. §§ 1602, 1604, 1610, 1639-1641 & 1647-1648 ("HOEPA"), and the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"). He also asserts state law claims for breach of fiduciary duty, breach of the covenant of good faith and fair dealing, injunctive relief and declaratory relief.
HomEq moves to dismiss all causes of action for failure to state a claim upon which relief can be granted. A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks, brackets and citations omitted). In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Similarly, "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998).
HomEq argues that the first cause of action for TILA violations is time barred. The applicable statute of limitations for a claim for damages under TILA is "one year from the date of the occurrence of the violation." 15 U.S.C. § 1640(e). "[T]he limitations period in Section 1640(e) runs from the date of consummation of the transaction but . . . the doctrine of equitable tolling may, in the appropriate circumstances, suspend the limitations period until the borrower discovers or had reasonable opportunity to discover the fraud or nondisclosures that form the basis of the TILA action." King v. California, 784 F.2d 910, 915 (9th Cir. 1986). Because the transaction was consummated in December 2005 and this action was filed on or about April 7, 2009, the statute of limitations has long expired. Plaintiff has not provided any allegations in support of equitable tolling and has not filed an opposition. The court therefore has no basis to conclude that there are grounds for equitable tolling for a sufficient period of time to make this action timely.
To the extent Plaintiff requests rescission under TILA, the statute of limitations has also expired. Pursuant to 15 U.S.C. Section 1635(f), "[a]n obligor's right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first . . .." The statute of limitations expired in December 2008. Based on the foregoing, Plaintiff's TILA claim is dismissed.
Plaintiff's second cause of action alleges that Defendants violated RESPA in part by placing loans for purpose of unlawfully increasing loan spread and other fees. (Compl. at 6.) This claim appears to be brought under 12 U.S.C. Sections 2607 (Prohibition against kickbacks and unearned fees) and is time barred. RESPA provides a one-year statute of limitations for section 2607 claims, which begins to run on "the date of the occurrence of the violation." 12 U.S.C. § 2614. "The date of the occurrence" is interpreted to refer to the closing. Snow v. First Am. Title Ins. Co., 332 F.3d 356, 359 (5th Cir. 2003). The loan transaction between HomEq and Plaintiff closed in December 2005. Accordingly, to the extent the RESPA claim is based on section 2607, it is barred by the statute of limitations and dismissed.
Plaintiff also alleges that Defendants violated 12 U.S.C. Section 2605(b) because they transferred the servicing contract or duties without the requisite notice. Section 2605(b) requires a mortgage servicer to "notify the borrower of assignment, sale or transfer of the servicing of the loan to any other person." 12 U.S.C. 2605(b)(1).*fn2 Plaintiff does not allege sufficient facts in support of this claim to meet the notice pleading requirements of Rule 8(a) of Federal Rules of Civil Procedure. Although Rule 8 does not require that the complaint include all facts necessary to carry the plaintiff's burden, it must allege plausible grounds to infer the existence of a claim for relief. Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009). This calls for enough facts to raise a reasonable expectation that discovery will reveal evidence to prove that claim. Id. Plaintiff's complaint falls short of this requirement because it does not allege whether loan servicing was transferred to or by HomEq. Accordingly, Plaintiff's RESPA claim under section 2605 is dismissed.
HomEq maintains that the third cause of action based on HOEPA violations is time barred. TILA's one-year statute of limitations set forth in 15 U.S.C. 1640(e) applies to this claim. It runs from the date of consummation of the transaction unless Plaintiff shows that equitable tolling suspends the limitations period until he discovered or had reasonable opportunity to discover the fraud or nondisclosure that forms the basis of the claim. King, 784 F.2d at 915. The HOEPA claim is based on the allegation that the loan was placed without regard to Plaintiff's income or cash flow and with intent to induce default. (Compl. at 7.) Plaintiff alleges that he "became aware of this upon discovery of Defendants [sic] intent to wrongfully foreclose and sell his property." (Id.) Plaintiff does not specify what role HomEq played in placing the loan or in the foreclosure sale, given that HomEq is a loan servicer and not a lender or broker. In addition, he does not provide any facts to explain his discovery of the alleged violation some three years after the loan closed and a substantial time after he stopped making payments. The notice of default filed December 4, 2008 reflects Plaintiff was $34,761.21 in default as of that time. (HomEq Notice of Lodgment Ex. 4.) To the extent Plaintiff claims that his discovery of the violation was delayed because he was defrauded or misled by Defendants, he must allege the circumstances constituting fraud with particularity required by Federal Rule of Civil Procedure 9(b) and all remaining facts as required by Rule 8(a). Accordingly, the HOEPA claim is time barred because Plaintiff fails to allege sufficient facts to support equitable tolling. HomEq's motion to dismiss the third cause of action is granted.
Plaintiff's fourth cause of action for FDCPA violations alleges that Defendants are debt collectors who requested validation of the debt but did not "respond to [Plaintiff's] demands in such a way as to meet the requirements of the act." (Compl. at 8.) HomEq maintains that this claim should be dismissed because it is not a debt collector under FDCPA. FDCPA exempts from the definition of "debt collector" "any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . . (iii) concerns a debt which was not in default at the time it was obtained by such person." 15 U.S.C. § 1692a(6)(F)(iii). Plaintiff does not allege, and it is not clear from HomEq's exhibits, whether it became the mortgage servicer on Plaintiff's mortgage before or after Plaintiff defaulted. It is therefore not clear whether FDCPA applies in this case at all. Furthermore, Plaintiff alleges that HomEq violated the debt validation procedure set forth at 15 U.S.C. Section 1692g by not "respond[ing] to his demands." Plaintiff does not allege sufficient facts to meet the notice pleading requirements of Rule 8(a) because he does not allege sufficient facts regarding HomEq's status as a debt collector under 15 U.S.C. Section 1692a(6). In addition, he does not explain what demands he made and what HomEq did that failed to comply with the requirements of 15 U.S.C. Section 1692g. Accordingly, Plaintiff's FDCPA claim is dismissed.
HomEq moves to dismiss the fifth cause of action which alleges that Defendants breached their fiduciary duty because they acted for their own benefit in negotiating the loan and continued to act for their own benefit. (Compl. at 8-9.) Plaintiff does not allege HomEq's role in loan negotiations. Given that HomEq is a loan servicer, it appears implausible that it played any role in the negotiations at all. Furthermore, a creditor does not owe a fiduciary duty to a debtor. Price v. Wells Fargo Bank, 213 Cal. App. 3d 465, 476 (1989). Plaintiff does not allege any facts to support the legal conclusion that a fiduciary duty exists between him as the debtor and HomEq as the loan servicer. Plaintiff has therefore failed to allege sufficient facts to meet the notice pleading requirements of Rule 8(a). Accordingly, the breach of fiduciary duty claim is dismissed.
In the sixth cause of action Plaintiff alleges that Defendants breached the implied covenant of good faith and fair dealing because they failed to "safeguard, protect, or otherwise care for the assets and rights of Plaintiff." (Compl. at 9-10.) This theory of liability appears to be based on the existence of a fiduciary duty between Plaintiff and Defendants, and is dismissed for the same reasons the fifth cause of action is dismissed.
Plaintiff also alleges that Defendants breached the covenant because they commenced foreclosure proceedings against Plaintiff's Property. (Compl. at 9-10.) However, an implied covenant of good faith and fair dealing cannot contradict the express terms of a contract, Carma Developers (Cal.), Inc. v. Marathon Dev. Cal., Inc., 2 Cal.4th 342, 374 (1992), and does not impose an affirmative duty on a party to forbear from enforcing rights expressly given under the contract, Price, 213 Cal. App. 3d at 479. Foreclosing on a security interest pursuant to a contractual right generally does not constitute a breach of the implied covenant of good faith and fair dealing. See Storek & Storek, Inc. v. Citicorp Real Estate, Inc., 100 Cal. App. 4th 44 (2002). Accordingly, HomEq's motion to dismiss the sixth cause of action is granted.


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The Second Amendment protects the right of the people to keep and bear arms for defense of life and liberty.
In U.S. v. Cruikshank (1876), Presser v. Illinois (1886), Miller v. Texas (1894) and U.S. v. Miller (1939), the Supreme Court recognized that the amendment protects an individual right. It has never taken a different view. However, in Salina v. Blaksley (1905), the Kansas Supreme Court invented the idea that the amendment instead protected a “right” of a person to keep and bear arms only while serving in a state militia, and in U.S. v. Tot (1942), the U.S. Court of Appeals for the Third Circuit advanced the idea that the amendment protects the “right” of a state to have a militia.
In District of Columbia v. Heller (2008), the Supreme Court heard its first case specifically centered on whether the amendment protects an individual right to arms. Gun control supporters advanced essentially the "Salina" argument, but the Court, consistent with its previous rulings in Second Amendment-related cases, ruled that the amendment protects an individual right to keep arms and to bear arms "in case of confrontation," without regard to a person’s relationship to a militia.
In McDonald v. Chicago (2010), the court extended the Second Amendment's protection nationwide.
Should social media check be required to get a gun license?
A gun control proposal in the New York State Legislature is getting some push-back from privacy groups.


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On February 27, 2018, the Supreme Court handed down Jennings v. Rodriguez, a 5–3 decision met with panic,  followed by reassurance,  and ultimately a steadfast determination that a constitutional battle over liberty itself rages on. That Jennings could elicit such a passionate response is unsurprising, given the subject it takes up. Jennings is a class-action lawsuit challenging federal laws that seemingly permit indefinite civil detention without a bail hearing while noncitizens fight to stay in the United States. Although some of the media response implied that Jennings was the last word upholding indefinite detention,the decision itself concluded only that the laws under review unambiguously allow for prolonged detention without a required bond hearing. Jennings did not address whether the Constitution permits such laws. Justice Alito, writing for the majority, concluded that the Ninth Circuit relied improperly on the canon of constitutional avoidance to read a required periodic bond hearing into certain immigration laws. The Ninth Circuit now has a chance to decide whether the Constitution tolerates such laws, unless, as the Court implied it should, it finds it lacks jurisdiction.
Writing with impassioned opposition to the majority, Justice Breyer, joined by Justice Ginsburg and Justice Sotomayor, dissented. Justice Breyer would apply the avoidance doctrine to allow the three classes of migrants certified in the lawsuit to receive a bond hearing every six months. Under the avoidance doctrine, a court interpreting a statute that raises grave doubts about its constitutionality will interpret the statute to avoid the constitutional problem where feasible. The majority found that the statutes clearly enable prolonged detention without a bond hearing, arguing that the Ninth Circuit’s use of constitutional avoidance amounted to a legislative rewrite rather than a judicial interpretation. Justice Breyer disagreed, devoting nine pages of a formidable dissent explaining why the statutes as interpreted by the majority are likely unconstitutional, and another eight pages supporting his argument for a constitutional reading of those statutes.
Whatever the fiction, would the Constitution leave the Government free to starve, beat, or lash those held within our boundaries? If not, then whatever the fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might retend, are in reality right here in the United States? The answer is that the Constitution does not authorize arbitrary detention. And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution's boundaries.
With these powerful words, Justice Breyer joins a legacy of Supreme Court justices whose protests of major immigration decisions have rung in the ears of immigration law students since Congress first declared its power to exclude, incarcerate, and banish noncitizens.
With commentators on Jennings noting Justice Breyer’s “scathing dissent,” immigration law students might take this opportunity to remember the dissents of immigration past to see how, if at all, the debate has shifted over the past 130 years. In some respects, not much has changed. The specter of immigration law’s notorious plenary power doctrine still looms large. What has changed, of course, is the context in which these dissenters were writing. Since Chief Justice Fuller, writing in 1893, told us that plenary power over the deportation of resident noncitizens “contains within it the germs of the assertion of an unlimited and arbitrary power . . . incompatible with the immutable principles of justice,” the United States government has created a massive deportation and detention regime. Notably, some of the justices who would provide the most constitutional protections for noncitizens were writing at a time when deportation and detention were rare practices. Now that many of us unthinkingly accept deportation and detention as inevitable, we seem to have narrowed the debate, asking more limited questions about what protections noncitizens deserve. By remembering what arguments some of our nation’s greatest legal minds once thought feasible, we can begin to reframe what might be possible today. We can thus look into the past to imagine a different future.
Although the extent to which the political branches retain plenary power over immigration today remains a lively question, the Government’s Jennings briefs relied heavily on this doctrine. That doctrine also lurked beneath Justice Breyer’s dissent insofar as he argued both that the judiciary has a role to play in assessing the constitutionality of immigration laws and that arriving noncitizens deserve constitutional protections. Justice Breyer’s dissent, then, continues a history of dissents pushing back on the political branches’ immense power over immigration laws. As discussed below, that history began at the end of the nineteenth century.
Breyer in 2018 or Brewer in 1893?
This doctrine of powers inherent in sovereignty is one both indefinite and dangerous. Where are the limits to such powers to be found, and by whom are they to be pronounced? . . . The governments of other nations have elastic powers. Ours are fixed and bounded by a written [C]onstitution. The expulsion of a race may be within the inherent powers of a despotism. History, before the adoption of this constitution, was not destitute of examples of the exercise of such a power; and its framers were familiar with history, and wisely . . . they gave to this government no general power to banish.
If a foreigner who resides in the country by its consent commits a public offense, is he subject to be cut down, maltreated, imprisoned, or put to death by violence, without accusation made, trial had, and judgment of an established tribunal, following the regular forms of judicial procedure? If any rule in the administration of justice is to be omitted or discarded in his case, what rule is it to be? If one rule may lawfully be laid aside in his case, another rule may also be laid aside, and all rules may be discarded. . . . That would be to establish a pure, simple, undisguised despotism and tyranny, with respect to foreigners resident in the country by its consent.
These dissents are, of course, far from perfect,and they each approach the majority opinion differently. Collectively, however, they raise a series of arguments that for many would be unthinkable today: denying that the federal government possesses the power to deport resident noncitizens, rejecting the limited role that the judiciary would play in assessing the constitutionality of certain immigration laws, insisting that deportation is a form of punishment, and urging that noncitizens facing deportation receive the same constitutional protections that criminal defendants enjoy.
Writing today, Justice Breyer’s wish list is in many respects more moderate. Unlike Justice Brewer, Justice Breyer does not challenge the federal government’s power to expel resident noncitizens, nor does he question whether a government of enumerated powers can possess other, ill-defined inherent powers. Nor does he urge that deportation or the detention preceding it constitutes punishment and that the same constitutional protections afforded criminal defendants should therefore attach. Rather, he merely suggests that the courts must play a role in assessing the constitutionality of immigration laws; that both noncitizens seeking admission and resident noncitizens in removal proceedings hold due process rights; and that the Due Process Clause cannot tolerate indefinite civil detention without a periodic bond hearing. His dissent is thus in some respects a more moderate dissent than those in Fong Yue Ting. That Justice Breyer did not question the federal government’s power to deport is hardly surprising, of course, given that he could only address the questions before him in Jennings. Nonetheless, that his dissent is more moderate than Justice Brewer’s tells us something about the sorts of questions advocates deem worthy of asking in a world where deportation and detention are largely accepted as normal.
One hundred thirty years ago, some of our nation’s brightest legal minds were shocked by the notion that the federal government possessed the power to expel resident noncitizens at all. If the federal government did possess the power to banish, the notion that it could do so without providing the full protections given criminal defendants was also shocking.
When Fong Yue Ting came outthe number of deportations carried out annually was negligible compared to today, and immigration detention was so little used that the Supreme Court had not yet addressed it. Since then, a behemoth deportation and detention regime has arisen, and many unthinkingly accept that regime. According to the Department of Homeland Security, in 1893 the government removed 1,630 noncitizens. In 2016, that number was 340,056. Likewise, the government rarely detained noncitizens until the 1990s, but since then immigration detention has become gargantuan, incarcerating hundreds of thousands of people every year.
Yet today, the Supreme Court justices most favorable toward the rights of noncitizens ask (unsuccessfully) only that a statute be construed such that certain noncitizens—those held in civil detention based on decisions made by executive branch officials—receive a hearing every six months at which another executive branch official would assess whether incarceration remains necessary. It seems then that the range of rights once thought possible for noncitizens has narrowed. Might the time be ripe to ask some bigger questions?
[*] Allison Crennen-Dunlap is a Staff Editor for the Denver Law Review and a 2019 J.D. Candidate at the University of Denver Sturm College of Law.
 Jennings v. Rodriguez, 138 S. Ct. 830, 863 (2018) (Breyer, J., dissenting).
 Michael Kagan, Jennings v. Rodriguez Might Not Be About Immigration After All 36 Yale J. Reg.: Notice & Comment(Mar. 2, 2018), http://yalejreg.com/nc/jennings-v-rodriguez-might-not-be-about-immigration-after-all/ (“There has been much alarmism from immigrant rights advocates about the Supreme Court’s decision in Jennings v. Rodriguez.”).
 Jennings v. Rodriguez, 138 S. Ct. 830, 836, 838–39 (2018).
 Amy R. Grenier, The Supreme Court Punts on the Constitutional Right to a Bond Hearing for Detained Immigrants, Migrationist (Mar. 6, 2018),https://themigrationist.net/2018/03/06/the-supreme-court-punts-on-the-right-to-a-bond-hearing-for-detained-immigrants (describing the media portrayal as “technically accurate, yet deceptive”).
 Jenning 138 S. Ct. at 847–48. As the Court explains, one of the statutes at issue does allow release color:black'>for witness-protection purposes, but otherwise the statute does not require a periodic bond hearing to assess whether an individual is a flight risk or poses a danger and thus merits release on bond.
 Jennings v. Rodriguez, 138 S. Ct. 830, 851 (2018).
 Clark v. Martinez, 543 U.S. 371, 380–81, 385 (2005); Rust v. Sullivan, 500 U.S. 173, 190 (1991) (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927) (“[A]s between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.”); United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916) (“A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.”).
 Jennings, 138 S. Ct. at 836 (“[A] court relying on [the canon of avoidance] still must interpret the statute, not rewrite it.”).
 Jennings v. Rodriguez, 138 S. Ct. 830, 861–69 (2018) (Breyer, J., dissenting).
 Jennings v. Rodriguez, 138 S. Ct. 830, 862–63 (2018) (Breyer, J., dissenting); see also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 226–27 (1953) (Jackson, J., dissenting) (“Because the respondent has no right of entry, does it follow that he has no rights at all? Does the power to exclude mean that exclusion may be continued or effectuated by any means which happen to seem appropriate to the authorities? It would effectuate his exclusion to eject him bodily into the sea or to set him adrift in a rowboat. Would not such measures be condemned judicially as a deprivation of life without due process of law?”).
 See, e.g., Demore v. Kim, 538 U.S. 510, 541 (2003) (Souter, J., dissenting) (“The Court's holding that the Constitution permits the Government to lock up a lawful permanent resident of this country when there is concededly no reason to do so forgets over a century of precedent acknowledging the rights of permanent residents, including the basic liberty from physical confinement lying at the heart of due process.”); Kleindienst v. Mandel, 408 U.S. 753, 772 (1972) (Douglas, J., dissenting) (“Thought control is not within the competence of any branch of government.”); id. at 785 (Marshall, J., dissenting) (“Nothing is served-least of all our standing in the international community-by Mandel's exclusion. In blocking his admission, the Government has departed from the basic traditions of our country, its fearless acceptance of free discussion. By now deferring to the Executive, this Court departs from its own best role as the guardian of individual liberty in the face of governmental overreaching.”); Mezei, 345 U.S. at 224 (Jackson, J., dissenting) (“Severe substantive laws can be endured if they are fairly and impartially applied.”); id. at 217 (Black, J., dissenting) (“No society is free where government makes one person's liberty depend upon the arbitrary will of another.”); Harisiades v. Shaughnessy, 342 U.S. 580, 600 (1952) (Douglas, J., dissenting) (“Banishment is punishment in the practical sense. It may deprive a man and his family of all that makes life.”); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 551 (1950) (Jackson, J., dissenting) (“The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected.”); Fong Yue Ting v. United States, 149 U.S. 698, 738 (1893) (Brewer, J., dissenting) (“I deny that there is any arbitrary and unrestrained power to banish residents, even resident aliens.”); id. at 749 (Field, J., dissenting) (“If aliens had no rights under the constitution, they might not only be banished, but even capitally punished, without a jury, or the other incidents to a fair trial.”); id. at 762 (Fuller, J., dissenting) (“The right to remain in the United States, in the enjoyment of all the rights, privileges, immunities, and exemptions accorded to the citizens and subjects of the most favored nation, is a valuable right, and certainly a right which cannot be taken away without taking away the liberty of its possessor. This cannot be done by mere legislation.”).
 Fong Yue Ting 149 U.S. at 763.
 See César Cuauhtémoc García Hernández, Crimmigration Law 7–8 (2015); Jennifer M. Chacón, Overcriminalizing Immigration, 102 J. Crim. L. & Criminology 613, 631–33 (2012); Anil Kalhan, Rethinking Immigration Detention, 110 Colum. L. Rev. Sidebar 42, 44–45 (2010); see also Aliens Removed or Returned: Fiscal Years 1892 to 2016, Dep’t Homeland Security Nov. 30, 2017), https://www.dhs.gov/immigration-statistics/yearbook/2016/table39 (providing removal data from 1892 to 2016) (hereinafter Aliens Removed); see also Doris Meissner Et al., Immigration Enforcement in the United States: The Rise of a Formidable Machinery 16–17 (2013) (documenting growth in spending on immigration enforcement).
 See generally César Cuauhtémoc García Hernández, Naturalizing Immigration Imprisonment, 103 Cal. L. Rev. 1449, 1513 (2015) [hereinafter Naturalizing Immigration Imprisonment].
 There are, of course, notable exceptions to the general trend toward accepting deportation and detention as inevitable. See, e.g., Molly Walsh, Yes, ICE Deserves to Be Abolished, Wash. Post (Mar. 13, 2018), https://www.washingtonpost.com/blogs/post-partisan/wp/2018/03/13/of-course-democrats-should-want-to-abolish-ice/?utm_term=.da785a005c08; Sean McElwee, It’s Time to Abolish ICE, Nation (Mar. 9, 2018), https://www.thenation.com/article/its-time-to-abolish-ice; César Cuauhtémoc García Hernández, Abolishing Immigration Prisons, 97 B.U. L. Rev 245, 246 (2017).
 Chae Chan Ping v. United States, 130 U.S. 581, 606 (1889).
30] The Constitution contains a Naturalization Clause but no clause enabling exclusion or expulsion of noncitizens.
 Chae Chan Ping, 130 U.S. at 606.
 See, e.g., Fiallo v. Bell, 430 U.S. 787, 794–95 (1977) (asking whether there was a facially legitimate and bona fide reason for execution of immigration law).
 U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950); see also Mathews v. Diaz, 426 U.S. 67, 80 (1976) (“Congress regularly makes rules that would be unacceptable if applied to citizens.”).
 See, e.g., Michael Kagan, Plenary Power Is Dead! Long Live Plenary Power!, 114 Mich. L. Rev. First Impressions 21, 22–23 (2015).
 For example, the Government’s Petition for Writ of Certiorari opens its statement of the applicable law with a robust recitation of the plenary power doctrine: “This Court has ‘long recognized [that] the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.’ Petition for Writ of Certiorari, Jennings v. Rodriguez, 138 S. Ct. 830, 863 (2018) (No. 15-1204) (citing Fiallo, 430 U.S. at 792) (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953)).
 Jennings v. Rodriguez, 138 S. Ct. 830, 859 (2018) (Breyer J., dissenting).
 Id. at 862–63; see also Brief of Professors of Constitutional, Immigration, and Administrative Law as Amici Curiae in Support of Respondents, Jennings, 138 S. Ct. 830 (No. 15-1204) (explaining that the Government’s conclusion that arriving noncitizens lack constitutional rights does not follow from the plenary power doctrine).
 Id. at 737; see also id. at 762 (Fuller, J., dissenting) (“Conceding that the exercise of the power to exclude is committed to the political department, and that the denial of entrance is not necessarily the subject of judicial cognizance, the exercise of the power to expel, the manner in which the right to remain may be terminated, rests on different ground, since limitations exist or are imposed upon the deprivation of that which has been lawfully acquired. And while the general government is invested, in respect of foreign countries and their subjects or citizens, with the powers necessary to the maintenance of its absolute independence and security throughout its entire territory, it cannot, in virtue of any delegated power, or power implied therefrom, of a supposed inherent sovereignty, arbitrarily deal with persons lawfully within the peace of its dominion.”). For echoes of Justice Brewer’s dissent in today’s discourse, see McElwee, supra note 28 (“[I]t’s time for progressives to put forward a demand that deportation be taken not as the norm but rather as a disturbing indicator of authoritarianism.”).
 Fong Yue Ting v. United States, 149 U.S. 698, 744 (1893) (Brewer, J., dissenting); id. at 749 (Field, J., dissenting) (“If the banishment of an alien from a country into which he has been invited as the asylum most auspicious to his happiness,-a country where he may have formed the most tender connections; where he may have invested his entire property, and acquired property of the real and permanent as well as the movable and temporary kind; where he enjoys, under the laws, a greater share of the blessings of personal security and personal liberty than he can elsewhere hope for; if a banishment of this sort be not a punishment, and among the severest of punishments, it would be difficult to imagine a doom to which the name can be applied.”); id. at 763 (Fuller, J., dissenting) (“As to them, registration for the purpose of identification is required, and the deportation denounced for failure to do so is by way of punishment to coerce compliance with that requisition. No euphuism can disguise the character of the act in this regard. It directs the performance of a judicial function in a particular way, and inflicts punishment without a judicial trial. It is, in effect, a legislative sentence of banishment, and, as such, absolutely void.”).
 Id. at 744 (Brewer, J., dissenting).
 Id. at 761 (Fuller, J., dissenting) (“However reluctant courts may be to pass upon the constitutionality of legislative acts, it is of the very essence of judicial duty to do so, when the discharge of that duty is properly invoked.”).
 Fong Yue Ting v. United States, 149 U.S. 698, 755 (1893).
 For instance, the blatant racism of the Chinese Exclusion Cases is also present in the dissents. See, e.g., id. at 743 (1893) (Brewer, J., dissenting) (“It is true this statute is directed only against the obnoxious Chinese, but, if the power exists, who shall say it will not be exercised to-morrow against other classes and other people?”). Note also that Justice Field authored the majority opinion in Chae Chan Ping v. United States, upholding the political branches’ unquestioned power to exclude “vast hordes” of Chinese migrants, who were “crowding in upon us.” 130 U.S. 581, 606 (1889).
 Jennings v. Rodriguez, 138 S. Ct. 830, 859 (2018) (Breyer, J., dissenting). Applying the avoidance doctrine assumes that courts have some role to play in testing the constitutionality of immigration laws.
 Id. at 862–63. On this point, Justice Breyer does seem to ask more than did the dissenting justices in Fong Yue Ting, all of whom were concerned about federal power to expel resident noncitizens, not new arrivals. See Fong Yue Ting, 149 U.S. at 733 (Brewer, J., dissenting); id. at 745 (Field, J., dissenting); id. at 761 (Fuller, C.J., dissenting).
 Jennings, 138 S. Ct. at 859. In this sense, Justice Breyer’s dissent asks for no greater judicial role in assessing the constitutionality of immigration laws than have prior decisions. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 696 (2001) (using constitutional avoidance to read an implicit reasonable time limitation into a statute otherwise allowing for indefinite detention after entry of a removal order). Further, the majority is not necessarily opposed to Justice Breyer on this point. Rather, it merely disagreed that the statutes might reasonably be interpreted as requiring periodic bond hearings. Jennings , 138 S. Ct. at 847–48. By leaving the constitutional question to the Ninth Circuit, the majority did not show its cards regarding how much deference it would provide Congress in evaluating whether prolonged detention without a bond hearing is constitutional.
 The Court would uphold temporary civil detention to effect deportation three years later in Wong Wing v. United States, 163 U.S. 228, 235 (1896). However, the practice of immigration detention was rather rare until the 1990s. See García Hernández, supra note 25, at 8.
 See Naturalizing Immigration Imprisonment, supra note 27, at 1513; Garrett Epps, How the Supreme Court is Expanding the Immigrant Detention System, Atlantic (Mar. 9, 2018), https://www.theatlantic.com/politics/archive/2018/03/jennings-v-rodriguez/555224 (“The ERO archipelago is metastasizing, with almost no public attention or debate.”).
 Aliens Removed, supra note 25.
 García Hernández, supra note 25, at 8; Yolanda Vázquez, Crimmigration: The Missing Piece of Criminal Justice Reform, 51 U. Rich. L. Rev. 1093, 1138 (2017) (“Since 1996, the number of individuals detained on immigration violations has tripled.”).
> See Epps, supra note 55; Vázquez, supra note 58, at 1138 (“From 2011 to 2014, over 427,000 individuals were detained each year.”).

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