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Thursday, September 28, 2017 @ 9:00 a.m.
The following items on the consent calendar will be presented to the Board immediately after the start of the public meeting, unless removed from the consent calendar either upon a Board member’s request or if someone in the audience wishes to speak on them.
The Board will consider adopting the Eastern Kern Air Pollution Control District 2017 Ozone Attainment Plan for the federal 75 ppb 8-hour ozone standard. If adopted, the California Air Resources Board will submit this plan to the United States Environmental Protection Agency as a revision to the California State Implementation Plan.
The Board will consider adopting amendments to the California Evaluation Procedures for New Aftermarket Catalytic Converters to allow use of these procedures on Low-Emission Vehicle III vehicles.
Spanish translation will be provided at the Board Meeting for this item, Item 17-9-3.
The Board will hear an update on the development of the comprehensive PM2.5 State Implementation Plan for the San Joaquin Valley, including the proposed strategy for meeting multiple PM2.5 standards. The Board will also consider the attainment contingency measure for the 15 µg/m3 annual PM2.5 standard in the San Joaquin Valley. If the revision is adopted, the California Air Resources Board will submit it to the United States Environmental Protection Agency as a revision to the California State Implementation Plan.
The Board will hear an update to the California Air Resources Board enforcement policy. CARB is updating its policy partly to respond to Assembly Bill 1685 (2016) which, among other things, increases the maximum penalties for mobile source violations and clarifies how those penalties can be applied. In addition to updating the current policy to address Assembly Bill 1685, staff is taking this opportunity to develop a more comprehensive enforcement policy; providing more clarity on compliance resources available, CARB’s enforcement process, considerations in determining appropriate penalties, voluntary disclosure considerations, minor violations, and public communication and information protection.
The Board will hear an update on the findings from a recently concluded research study investigating the Methane ‘Hot Spot’ and potential super-emitters across the state that was conducted pursuant to Assembly Bill 1496.
American Fuels and Petrochemical Manufacturers, et al. v. Jane O’Keeffe, et al.,U.S. District Court (D. Ore. Portland), Case No. 3:15-CV-00467; Plaintiffs’ appeal, U.S. Court of Appeals, Ninth Circuit, Case No. 15-35834.
Kimberly-Clark Worldwide, Inc. v. California Air Resources Board, et al., Sacramento County Superior Court, Case No. 34-2015-80002246.
Morning Star Packing Company, et al. v. California Air Resources Board, et al.,Sacramento Superior Court, Case No. 34-2013-800001464; plaintiffs’ appeal, California Court of Appeal, Third District, Case No. C075954.
POET, LLC, et al. v. California Air Resources Board, et al., Superior Court of California (Fresno County), Case No. 09CECG04659; plaintiffs’ appeal, California Court of Appeal, Fifth District, Case No. F064045; California Supreme Court, Case No. S213394 [remanded to trial court]; plaintiff’s appeal of trial court order discharging peremptory writ of mandate, Court of Appeal, Fifth District, Case No. F073340.
POET, LLC, et al. v. California Air Resources Board, et al., Superior Court of California (Fresno County), Case No. 15CECG03380.
Rocky Mountain Farmers Union, et al. v. Corey, U.S. District Court (E.D. Cal. Fresno), Case No. 1:09−CV−02234−LJO−DLB; ARB interlocutory appeal, U.S. Court of Appeals, Ninth Circuit, Case No. 12-15131 [remanded to trial court].
Sowinski v. California Air Resources Board, et al., U.S. District Court, Central District of California, Case No. 8:15-CV-02123.
Transportation Solutions Defense and Education Fund v. California Air Resources Board, Fresno County Superior Court, Case No. 14CECG01788 (plaintiff’s transfer to Sacramento Superior Court, Case No. 34-2014-80001974-CU-WM-GDS).
Adam Brothers Farming, Inc. v. California Air Resources Board, et al., Santa Barbara County Superior Court, Case No. 15 CV04432.
Alliance for California Business v. California Air Resources Board, et al., Glenn County Superior Court, Case No. 13CV01232; plaintiffs’ appeal, Court of Appeal, Third District, Case No. C082828.
Jack Cody dba Cody Transport v. California Air Resources Board, et al., Sacramento Superior Court, Case No. 34-2015-80002116; plaintiff’s appeal, Court of Appeal, Third District, Case No. C083083.
Hamilton v. California Air Resources Board, et al., U.S. District Court for the Eastern District of California, Case No. 1:15-CV-01942-AWI-SKO.
Owner-Operator Independent Drivers Association Inc. et al. v. Corey et al., U.S. District Court, (E.D. Cal. Fresno) Case No. 1:13-CV-01998-LJO-SAB (transferred by court to E.D.Cal. Sacramento, Case No. 2:14-CV-00186-MCE-AC), plaintiffs’ appeal U.S. Court of Appeals, Ninth Circuit, Case Nos. 15-72101 and 15-16429.
California Air Resources Board v. SSA Containers, Inc., Los Angeles County Superior Court, Case No. BC628573 and No. BC628722.
California Air Resources Board v. West Coast Diesel, Inc., Fresno County Superior Court, Case No. 15 CECG 03337.
California Air Resources Board v. Adam Brothers Farming Inc., Santa Barbara County Superior Court, Case No. 16CV01758.
People of the State of California ex rel. California Air Resources Board v. Marten Transport Logistics, LLC, Los Angeles County Superior Court, Case No. BC645288.
Mahan v. California Air Resources Board, Sacramento County Superior Court, Case No. 34-2016-80002416.
maintain health-based air quality standards. Learn more at www.arb.ca.gov.

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21 authors who bring up tricky questions about educational exertions within the box of conversation reviews. From defunding of universities to the genuine dilemmas dealing with directors: from the altering politics of careers to the ways in which gender and sophistication play out for college and scholars; from the kinds of labor that get released and promoted to the tyranny of PowerPoint; from the politics of fundraising, to the devolution of management, to the function of unions in universities. The authors offer lots of proposals and courses for switch, from small yet significant gestures to activist courses for pedagogy and examine, to large proposals for organizing ourselves and reworking the methods our departments and fields do enterprise. within the procedure, they bring up much more provocative questions. Authors examine a number of concerns large and small, from defunding of universities to the true dilemmas dealing with directors: from the altering politics of careers to the ways in which gender and sophistication play out for college and scholars; from the kinds of labor that get released and promoted to the tyranny of PowerPoint; from the politics of fundraising, to the devolution of management, to the position of unions in universities.
The authors offer lots of proposals and courses for swap, from small yet significant gestures to activist courses for pedagogy and examine, to giant proposals for organizing ourselves and remodeling the methods our departments and fields do company. within the approach, they bring up much more questions.
21 authors who bring up tricky questions about educational hard work within the box of communique stories. From defunding of universities to the true dilemmas dealing with directors: from the altering politics of careers to the ways in which gender and sophistication play out for school and scholars; from the categories of labor that get released and promoted to the tyranny of PowerPoint; from the politics of fundraising, to the devolution of management, to the function of unions in universities.
Derek Bok examines the complicated moral and social matters dealing with glossy universities this day, and indicates ways that might let the tutorial establishment either to serve society and to proceed its basic undertaking of educating and research.
Storytelling, tale research, file writing, persuasive writing, discussing literature, vocabulary—no topic what language arts subject you're addressing, this ebook will give you dozens of task principles utilizing a variety of technologies.
Each job during this booklet is tagged with a prompt point, major applied sciences used, and literacy lined, and all are aligned to the NETS•S and customary middle nation criteria. you could simply adapt the vast majority of the actions for any point with minor alterations, together with for college students with specified wishes and English language learners.
The overseas Society for know-how in schooling (ISTE) is the depended on resource for pro improvement, wisdom new release, advocacy and management for innovation. ISTE is the most popular club organization for educators and schooling leaders engaged in enhancing instructing and studying by way of advancing the potent use of expertise in PK-12 and instructor schooling. domestic of the nationwide academic expertise criteria (NETS), the guts for utilized examine in academic expertise (CARET), and ISTE's annual convention (formerly referred to as the nationwide academic Computing convention, or NECC), ISTE represents greater than 100,000 pros around the world. We aid our contributors with info, networking possibilities, and information as they face the problem of remodeling schooling.
Hamburg. — (1978–92): Fichte im Gespräch. Hrsg. v. Erich Fuchs, 6 Bde. Stuttgart-Bad Cannstatt. — (1977): Darstellung der Wissenschaftslehre aus den Jahren 1801/02, Hrsg. v. Peter K. Schneider. Hamburg. — (1975): Die Wissenschaftslehre. Zweiter Vortrag im Jahre 1804 vom 16. April bis 8. Juni. Hrsg. v. Reinhard Lauth/Joachim Widmann. Hamburg. — (1969): Erste Wissenschaftslehre von 1804. Hrsg. v. Hans Gliwitzky. Stuttgart/Berlin/Köln/Mainz. ): J. G. Fichte-Gesamtausgabe der Bayerischen Akademie der Wissenschaften.
M. Schulz, Walter (1963): Das Problem der absoluten Reflexion. Frankfurt a. M. — (1962): Johann Gottlieb Fichte. Vernunft und Freiheit. Tübingen. — (1955): Die Vollendung des Deutschen Idealismus in der Spätphilosophie Schellings. Stuttgart (erw. Aufl. Tübingen 1975). Schüssler, Ingeborg (1972): Die Auseinandersetzung von Idealismus und Realismus in Fichtes Wissenschaftslehre. Grundlage der gesammten Wissenschaftslehre 1794/5. Zweite Darstellung der Wissenschaftslehre 1804. Frankfurt a. M. Siep, Ludwig, (1970): Hegels Fichtekritik und die Wissenschaftslehre von 1804.
V. Klaus Widdra. Übers. v. Hieronymus Müller/Friedrich Schleiermacher, Darmstadt, S. 1–209 (4. unveränderte Auflage, unveränderter Nachdruck der 1. Auflage 1972). 38 Günter Zöller Sekundärliteratur Barion, Jakob (1929): Die intellektuelle Anschauung bei J. G. Fichte und Schelling und ihre religionsphilosophische Bedeutung. Würzburg. Baumanns, Peter (1990): J. G. Fichte. Kritische Gesamtdarstellung seiner Philosophie. Freiburg/München. — (1974): Fichtes Wissenschaftslehre. Probleme ihres Anfangs.

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Considered March 9, 2006. Decided March 9, 2006.
In the Matter of the Election Contest Filed by ARTHUR CODAY, JR., Petitioner . In the Matter of the Election Contest Filed by MICHAEL J. GOODALL, Petitioner . In the Matter of the Election Contest Filed by SUZANNE D. KARR, Petitioner . In the Matter of the Election Contest Filed by DANIEL P. STEVENS, Petitioner .
SANDERS and J.M. JOHNSON, JJ., dissent by separate opinion.
Arthur Coday, Jr., Michael J. Goodall, Suzanne D. Karr, and Daniel P. Stevens, pro se.
Senior Assistant, and Jeffrey T. Even, Assistant, for the Secretary of State.
Kevin J. Hamilton, David J. Burman, Kathleen M. O'Sullivan, and William C. Rava (of Perkins Coie, L.L.P. ), for the Washington State Democratic Central Committee.
¶1 ALEXANDER, C.J. - Four election contests challenging the results of the 2004 governor's election were filed in this court by individual electors. These contestants rely on various grounds to challenge the results of the election. We conclude that three of these contests, those filed by Arthur Coday, Jr., Michael J. Goodall, and Daniel P. Stevens, fail to state a cognizable claim under the election contest statute. The fourth of these contests, that filed by Suzanne D. Karr, is identical to Borders v. King County, No. 05-2-00027-3 (Chelan County Super. Ct. June 24, 2005), which was decided in Chelan County Superior Court and is, therefore, barred under the doctrine of res judicata. We, therefore, dismiss all four contests.
¶2 The events surrounding the 2004 race for governor in Washington State are by now well known. Nevertheless, a brief summary of these events is appropriate. The general election was held November 2, 2004. Vying for the governor's office were Democrat Christine Gregoire, Republican Dino Rossi, and Libertarian Ruth Bennett.
dates, a mandatory recount was automatically triggered. A machine recount was ordered by the secretary of state on November 17 and commenced shortly thereafter. The results of the machine recount were reported November 30 and indicated that Rossi had received 42 more votes than Gregoire. On that date the secretary of state certified that result.
¶4 On December 3, a representative of the Democratic Party applied for a statewide manual recount, id. at 5, and, as required by statute,«1» deposited $730,000 to cover the costs thereof should the outcome of the election not change as a result of the recount. On December 6, the secretary of state ordered a statewide manual recount. The manual recount began on December 8.
¶5 Also on December 3, the Democratic Party filed an original action in this court. The Democrats sought to have thousands of ballots, which were rejected in the initial count because of certain defects, "recanvassed" during the hand recount. We rejected the Democrats' request to order the recanvass of previously rejected ballots, reasoning that Washington law requires a recount of only those ballots actually tabulated in the initial count. See McDonald v. Reed, 153 Wn.2d 201, 103 P.3d 722 (2004).
«1» See former RCW 29A.64.030 (2003).
this court. We held that a county canvassing board has discretion to recanvass ballots in certain circumstances and thus reversed the superior court's order and allowed the newly discovered ballots to be canvassed and included in the total tally of votes. See Wash. State Republican Party v. King County, 153 Wn.2d 220, 224, 103 P.3d 725 (2004).
¶7 The hand recount was completed on December 23. With the newly discovered ballots included in the final tally, Gregoire received 1,373,361 votes, Rossi received 1,373,232 votes, and Bennett received 63,456 votes, giving Gregoire a 129-vote victory over Rossi. The secretary of state transmitted the election results to the legislature on December 30. The legislature certified Gregoire as the winner on January 11, 2005, and she was sworn in as governor on January 12.
had not proved that the outcome of the governor's election was changed as a result.
¶9 On June 7, Rossi and the Republicans decided not to appeal that ruling. Several weeks after the Borders case was dismissed, the $730,000 deposited by the Democratic Party when it requested a second recount was returned to the party together with two percent interest on the $730,000.
¶10 The election contests of Stevens, Coday, Karr, and Goodall were filed directly in this court on January 3, 5, 10, and 19, respectively. The secretary of state and the Democratic Central Committee, though not named parties in these contests, requested the opportunity to comment on how they should be addressed. We granted these requests and received comments from both parties on July 12. In their comments, the secretary of state and the Democratic Central Committee both argued that these contests either failed to state a cognizable claim under the election contest statute or were identical to the Borders claim and, therefore, barred by res judicata. Both the secretary of state and the Democratic Central Committee urged this court to dismiss all four contests.
¶11 Arthur Coday, Jr., a registered voter in King County, argues that the state violated the Washington Constitution in conducting the 2004 gubernatorial election. Specifically, he contends that article I, section 19 of the Washington Constitution was violated. Article I, section 19, entitled "Freedom of Elections" provides that "[a]ll Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage." He claims that the State ran afoul of this provision in five particular ways.
allowed to "purchase the right to a hand recount." Coday Br. at 5 ("the Democratic . . . Party made payment of money to the State in order to purchase the right to recount a State-certified election"). The election was literally not "free" as required by article I, section 19, Coday argues, because the recount, and therefore the election, could be "bought or sold." Id.
¶13 Coday next argues that the election was not "equal" because all voters did not have the "unconditional right to call for a recount." Id. at 7. He asserts that the opportunity to call for a recount must be unconditional, i.e., unlimited. Because effectively only one party may call for a recount under Washington's recount statute, the opportunity for other parties to seek a recount is necessarily limited. Furthermore, Coday argues, the person who actually does get to request a recount is afforded a "special favor." Id.
¶14 Coday's third argument is that the State improperly counted additional ballots not tabulated in the initial count. He observes that "in the three counts of ballots in the election process for the Governor, there has been one count each of three different sets of ballots, and not a single 'recount' of the original set of approved ballots." Id. According to Coday, the failure to count only one set of ballots "violates the principle of 'equal [sic].' " Id. at 8.
¶15 Next, Coday claims that "Washington's recount laws are statistically flawed." Id. at 10. He argues that the proper statistical method for determining the winner of an election during a recount is to average the results of each of the counts. Because Washington's recount method considers only the results of the final count, it is contrary to "[m]odern statistical theory." Id.
¶16 Coday's final argument is focused on the practice of enhancing ballots. He asserts that the practice of enhancing ballots is inherently illegal, claiming that "[a]n 'enhanced' ballot is merely a pseudonym for a ballot tainted by tampering." Id. at 11.
advance of the recount. He also asks us to "[s]trike down any law that provides private parties with the unconditional right to call for a recount," require the use of a single set of ballots for each of the recounts, require the State to average the results of each of the recounts, reject all enhanced ballots, and inaugurate Dino Rossi as governor of Washington. Id. at 12.
¶18 Michael J. Goodall, a registered voter in King County, filed a "Citizens Complaint" contesting the election of Christine Gregoire as governor. He alleges that Gregoire is unfit to be governor because she impermissibly offered Washington voters a reward in exchange for their votes.
¶19 Goodall's son, C.N., has severe autism and was placed in foster care because neither Goodall nor C.N.'s mother could properly care for him. Goodall argues that while in foster care, his son was abused and maltreated. He contends that then-Attorney General Gregoire was aware of this abuse but conspired with other individuals in the Office of the Attorney General and with other state agencies and the King County Superior Court to cover up this abuse in order to shield the State from a large judgment. Goodall maintains that Gregoire was motivated to prevent a large judgment against the State because it would be politically embarrassing for the Office of the Attorney General and would hurt her chances of being elected governor.
any person declared elected to an office to be issued a certificate of election . . .
(4) Because the person whose right is being contested gave a bribe or reward to a voter or to an inspector or judge of election for the purpose of procuring the election, or offered to do so.
¶21 Goodall asks this court to "not allow Christine Gregoire to become Governor" because her alleged deliberate acts of "covering up [acts of child] abuse and maltreatment" by state foster homes violated RCW 29A.68.020(4). Citizens Complaint at 7.
¶22 Suzanne D. Karr, a registered voter in Snohomish County, filed an "Affidavit of Error or Omission" in which she contests the results of the 2004 gubernatorial election. Karr charges that the election is invalid because of misconduct on the part of King County election officials and illegal votes counted in the governor's race.
¶23 With respect to her claim of misconduct on the part of election officials, Karr claims that (1) a number of provisional ballots in King County were counted without having first been deemed valid; (2) election officials impermissibly released to the Democratic and Republican parties names of provisional voters whose signatures on file did not match their signatures on their ballots and allowed the parties to submit signature verification affidavits on behalf of voters; and (3) election officials failed to obtain or to adequately verify voter signatures on some ballots, resulting in a greater number of votes being cast than voters appearing on the list of electors having voted.
¶24 Karr claims that a number of illegal votes were counted because some voters cast more than one vote or were disqualified under article VI, section 3 of the Washington Constitution,«2» because they were felons or had been declared incompetent. Karr contests the right of Gregoire to be elected but asks for no particular relief.
«2» Article VI, section 3 provides: "All persons convicted of infamous crime unless restored to their civil rights and all persons while they are judicially declared mentally incompetent are excluded from the elective franchise."
"[t]he delta value of votes given to both candidates is exponentially within the tally's margin of error, to the point that error must be assumed as a certainty, as given by three separate counts resulting in three different outcomes." Stevens' Br. at 1.
¶26 Stevens requests that this court "[n]ullify the election" and "[o]rder a revote." Id.
(5) On account of illegal votes.
(6) An error or omission has occurred or is about to occur in the issuance of a certificate of election.
¶29 In Foulkes, this court agreed that a challenger could maintain a challenge to an election under the equivalent to current RCW 29A.68.011 even if grounds to contest the election under the equivalent to current RCW 29A.68.020 did not exist. Foulkes, 85 Wn.2d at 632-35. Thus, where a challenger alleges that an election official has engaged in a wrongful act or has neglected a duty, he or she may challenge the results of the election under RCW 29A.68.011, even if none of the specific causes enumerated in RCW 29A.68.020 are implicated.
¶30 RCW 29A.68.030 provides that "no statement of contest may be dismissed for want of form if the particular causes of contest are alleged with sufficient certainty." (Emphasis added.) Thus, an election contest which fails to allege "the particular causes of contest . . . with sufficient certainty" may be dismissed. RCW 29A.68.030.
[a]lthough Respondent's petition did not cite specific subsections of the [election contest] statute, sufficient facts and law were stated concerning the nature of the claim to bring the petition under the statute. Although the petition is not a model of pleading, it is nevertheless adequate so long as it is sufficient to satisfy necessary legal requirements.
¶32 Although we did not indicate what the "necessary legal requirements" are in an election contest petition or affidavit, we referred to the standard articulated in Lightner v. Balow, 59 Wn.2d 856, 370 P.2d 982 (1962). In Lightner, this court recognized that " ' "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." ' " Lightner, 59 Wn.2d at 858 (quoting Sherwood v. Moxee Sch. Dist. No. 90, 58 Wn.2d 351, 353, 363 P.2d 138 (1961) (quoting Conley v. Gibson, 355 U.S. 41, 45, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957))).
¶33 This standard is similar to that applicable to a motion to dismiss pursuant to Civil Rule (CR) 12(b)(6). Dismissal of a claim pursuant to CR 12(b)(6) is appropriate "only if 'it appears beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle the plaintiff to relief.' " Orwick v. City of Seattle, 103 Wn.2d 249, 254, 692 P.2d 793 (1984) (quoting Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wn.2d 959, 961, 577 P.2d 580 (1978)).
¶34 Each of these four contests was timely filed. Furthermore, while none of the contests is a "model of pleading," Dumas, 137 Wn.2d at 282, we will not dismiss election contests "for want of form." RCW 29A.68.030. Thus, we must determine whether each of these contests states a claim under the election contest statute with "sufficient certainty." We will consider each contest seriatim.
¶35 Coday's first two claims, that the election was not "free" as required by the constitution because Gregoire was allowed to "purchase the right to a hand recount" and that the election was not "equal" as required by the constitution because not all citizens had an equal, unqualified right to contest the election, are not cognizable under the election contest statute. The procedure for commencing a recount and the requirement that a deposit be made to cover the costs of a recount should the result of the election not be changed are established by statute. See RCW 29A.64.011, .030, .081. A party requesting a recount does not purchase the right to a recount, but makes a deposit, which is refunded if the result of the election is reversed as a result of the recount. See RCW 29A.64.030. Furthermore, any elector, along with four other electors, has the right to request a recount. RCW 29A.64.011. Neither of the provisions Coday challenges violates the "free and equal" requirement of article I, section 19 of the constitution.
¶36 The third claim, that the State violated its own laws by counting different sets of ballots in each recount, is meritless in light of our decision in Washington State Republican Party, which addressed this very issue and approved the practice of counting certain ballots in a recount that had not been previously counted, under certain circumstances. See Wash. State Republican Party, 153 Wn.2d at 224. Coday's fourth issue, that the State's ballot counting procedures were statistically flawed, is not addressable under any provision of the election contest statute. The recounts were properly conducted pursuant to the methodology established in statute. The statute governing recounts, chapter 29A.64 RCW, neither provides for, nor allows, the statistical averaging of recount results. Nothing about this recount methodology violates article I, section 19's requirement of "free and equal" elections.
"equal" election. The practice of ballot enhancement does not actually "enhance" a ballot, but instead allows a vote recorded on a ballot to be made readable by electronic voting equipment consistently with the voter's intent. WAC 434-261-005. The secretary of state has authorized the practice of ballot enhancement ( see WAC 434-261-005, -070, -080, and -085) and has dictated procedures to ensure that ballot enhancement occurs in a fair and transparent manner. See WAC 434-261-070(3)(c), -080. This process does not in any way run afoul of our constitution's requirement for an "equal" election.
¶38 Goodall bases his contest specifically on RCW 29A.68.020(4), claiming that Gregoire gave bribes or rewards to voters in exchange for their votes. While Goodall's allegations, if true, might give rise to some legal claim, they are not cognizable under the election contest statute. Actions taken to avoid large judgments against the state do not constitute a "bribe or reward to a voter" given "for the purpose of procuring the election." RCW 29A.68.020(4). Goodall's contest, therefore, fails to satisfy the necessary legal requirements.
¶39 The Stevens contest is based on his assertion that "error must be assumed as a certainty" because "[t]he delta value of votes given to both candidates is exponentially within the tally's margin of error." Stevens' Br. at 1. While this assertion may well be true, it does not entitle him to any relief under chapter 29A.68 RCW. He fails to point to any wrongful act or neglect of duty on the part of any election official under RCW 29A.68.011. Furthermore, the fact that the number of votes separating the candidates was within the margin of error does not constitute "error" in the issuance of a certification of election of the type contemplated by the statute. Finally, Stevens' claims do not fall within any of the causes specified in RCW 29A.68.020. It therefore fails to satisfy necessary legal requirements.
¶40 While want of form and arguably deficient in evidence, the Karr contest raises issues that are clearly addressable under RCW 29A.68.020. As noted above, she claims that there was misconduct on the part of election officials and that illegal votes were cast in favor of Gregoire. She supports these broad claims by referencing specific acts and omissions.
¶41 The first cause she puts forth, "misconduct on the part of election officers and members of the precinct election board involved [in the conduct of the election]," Karr Aff. at 1, states a claim under RCW 29A.68.020(1) (allowing a registered voter to contest an election based on "misconduct on the part of any member of any precinct election board involved [in conduct of the election]"). Her second cause, illegal votes, falls squarely within RCW 29A.68.020(5), which allows a voter to contest an election based on "illegal votes."
¶42 Karr's contest is "sufficient to satisfy necessary legal requirements" in that, assuming the allegations raised in her affidavit are true, she would likely be entitled to relief. Dumas, 137 Wn.2d at 282. Karr therefore presents a cognizable claim under chapter 29A.68 RCW.
«3» Under ER 201, Washington courts generally do not take judicial notice of court records from a different case. However, this court has held that "where the state of the pleadings is such that the plea of res judicata cannot be interposed, and there is no opportunity to raise the point on the introduction of evidence, the court will take judicial notice of the prior decision adjudicating the issue." Reagh v. Hamilton, 194 Wash. 449, 455, 78 P.2d 555 (1938) (citing Wilkes v. Davies, 8 Wash. 112, 121, 35 P. 611 (1894) ("It is true that the plea of res adjudicata was not presented by the pleadings, nor was it offered in proof under the general issue, which are the two ordinary ways of bringing this question to the notice of the court. But this case falls within the rule laid down by many courts where no opportunity to plead the former adjudication is presented.")). In this case, the petitioner, Karr, did not name opposing parties and therefore there was no party to plead and prove res judicata as a defense, although the secretary of state and the Democratic Central Committee both argued in comments submitted to this court that res judicata should bar Karr's claims. Furthermore, Karr herself urged this court to "utilize the evidence from the Borders case as a foundation for ruling on this affidavit." Resp. by Pet'r to Comments Filed by the Sec'y of State and the Democrat Cent. Comm. at 5. She offered that she "does not have the legal resources or any desire to waste this Court's time by reintroducing relevant evidence and testimony already covered in the Borders case." Id. Under these unusual circumstances, we find it appropriate to take judicial notice of the oral decision in Borders.
ment will bar litigation of a subsequent claim if the prior judgment has "a concurrence of identity with [the] subsequent action in (1) subject matter, (2) cause of action, (3) persons and parties, and (4) the quality of the persons for or against whom the claim is made." Loveridge v. Fred Meyer, Inc., 125 Wn.2d 759, 763, 887 P.2d 898 (1995).
¶44 Karr's contest is identical in subject matter (errors, omissions, and misconduct committed by elections officials in the conduct of the 2004 gubernatorial election and illegal votes cast by individuals constitutionally disqualified from voting) and cause of action (an election contest under chapter 29A.68 RCW). Furthermore, Karr is identical to the parties in the Borders case. Generally, the rules that allow for concurrence of identity between parties are quite strict. However, where "nominally different parties" pursue causes of action as voters, on behalf of the body politic generally, such parties have been found to "have sufficiently identical interests to satisfy the 'identity of parties' inquiry" because they possess "the same legal interests as all citizens of the state." In re Recall of Pearsall-Stipek, 136 Wn.2d 255, 261, 961 P.2d 343 (1998); accord Snyder v. Munro, 106 Wn.2d 380, 384, 721 P.2d 962 (1986) (holding that "all citizens of Washington state were well represented in" a prior suit brought by the leaders of the state Democratic and Republican organizations and state government officials, and that therefore res judicata barred registered voters from raising the same claim in a subsequent action).
¶46 The parties in the contests of Coday, Goodall, Karr, and Stevens have not raised the issue of this court's jurisdiction to decide an election contest for governor. Article III, section 4, of the Washington Constitution says that election contests for statewide executives, including the governor, "shall be decided by the legislature in such manner as shall be determined by law." We have assumed, without deciding, that chapter 29A.68 RCW confers jurisdiction on this court to decide the present election contests. We reserve the right to consider the question of whether the constitution gives the legislature exclusive jurisdiction over governor's election contests if it is properly raised at some future time.
«4» We are reluctant to bar citizens from exercising the right, afforded them by statute, to contest an election. However, we are also wary of numerous election contests being conducted in multiple jurisdictions, which could result in conflicting verdicts, ongoing uncertainty in the outcome of elections, and the needless expenditure of judicial resources. Thus, in cases such as this one, where parties to one election contest adequately represent the electorate (i.e., have significant stake in the outcome of the contest and invest significant resources in pursuing all viable grounds for the contest) we will invoke the doctrine of res judicata to bar substantially identical contests. However, we might well decline to apply res judicata to bar election contests where the contestants in an earlier case do not adequately represent the interests of the electorate generally.
identical to the Borders contest and is, therefore, barred by res judicata. We, therefore, dismiss all four contests.
C. JOHNSON, MADSEN, BRIDGE, CHAMBERS, OWENS, and FAIRHURST,JJ., concur.
¶49 The majority denies Suzanne D. Karr her day in court to litigate an election contest asserting it is barred by res judicata. I strongly disagree. The mere fact that Ms. Karr and the unrelated litigants in the unappealed trial court proceeding of Borders v. King County«5» sought to contest the same election does not constitute a concurrence of cause of action or of persons or parties for the purposes of the doctrine. This ruling strikes at the heart of the fundamental right of every person to access the courts. I dissent.
«5» Borders v. King County, No. 05-2-00027-3 (Chelan County Super. Ct. June 24, 2005).
denotes mutual or successive relationship to the same right or property."
Owens v. Kuro, 56 Wn.2d 564, 568, 354 P.2d 696 (1960) (quoting Sodak Distrib. Co. v. Wayne, 77 S.D. 496, 502, 93 N.W.2d 791, 795 (1958)).
¶51 Holding Ms. Karr and the litigants in Borders are identical parties for res judicata purposes, the majority purports to rely on Snyder and In re Recall of Pearsall-Stipek, 136 Wn.2d 255, 961 P.2d 343 (1998). Majority at 501. Not so.
¶52 The plaintiffs in Snyder identified themselves as "members of a 'political party or group' " discriminated against by the legislative redistricting at issue in that case. Snyder, 106 Wn.2d at 384. We found sufficient privity with parties in the prior judgment existed because "[t]he parties in the prior judgment were the acknowledged heads of the major political parties in Washington." Id. However no such relationship exists between Ms. Karr and the Borders litigants. Ms. Karr did not participate in the Wenatchee trial. The record is silent on her political affiliation, if any. Her affidavit of error or omission was filed on January 10, 2005, a mere three days after the Borders contest was filed and some five months before the ruling in that case. In short, nothing in the record suggests a " 'mutual or successive relationship' " between Ms. Karr and the parties in Borders. Owens, 56 Wn.2d at 568 (quoting Wayne, 77 S.D. at 502).
«6» I found Pearsall-Stipek's dicta on res judicata unconvincing as explained in my concurrence, a concurrence ironically joined by Chief Justice Alexander.
tion between Ms. Karr and the contestants in Borders, the fact Ms. Karr is challenging the result of the same election, standing alone, is insufficient to establish the concurrence of the parties' identity. See Loveridge v. Fred Meyer, Inc., 125 Wn.2d 759, 768, 887 P.2d 898 (1995) (holding "[p]rivity is established in cases where the person exercises actual control or substantially participates in the litigation").
¶54 The majority also holds Ms. Karr's and the Borders' election contests arise under the same cause of action. Majority at 499. I disagree. Ms. Karr has stated a claim under both RCW 29A.68.020(1), alleging "misconduct on the part of any member of any precinct election board involved [in the election]," and RCW 29A.68.020(5), alleging Governor Gregoire was issued a certificate of election "[o]n account of illegal votes."«7» By contrast, the Borders petitioners alleged violations of RCW 29A.68.020(5) and RCW 29A.68.011(4) and (5), but not RCW 29A.68.020(1). See Court's Oral Decision, Verbatim Report of Proceedings at 6 ( Borders v. King County, No. 05-2-00027-3 (Chelan County Super. Ct. June 6, 2005)). By concluding the two contests arise under an identical cause of action, majority at 501, the majority effectively merges RCW 29A.68.011(4), (5), and RCW 29A.68.020(1), impermissibly rendering the latter superfluous. See Davis v. Dep't of Licensing, 137 Wn.2d 957, 963, 977 P.2d 554 (1999) (statutes must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous). Therefore, Ms. Karr's claim of "misconduct on the part of election officers and members of the precinct election board involved [in the election]"«8» under RCW 29A.68.020(1) cannot be barred by the doctrine of res judicata for the additional reason it was not raised by the petitioners in Borders.
«7» Suzanne D. Karr Aff. of Error or Omission at 1, 3; see also majority at 500.
«8» Suzanne D. Karr Aff. of Error or Omission at 1.
contests if "parties to one election contest adequately represent the electorate." Majority at 502 n.4. Put differently, the majority effectively conditions the citizens' right to contest an election on our assessment of the efficacy of any previous contests. This novel approach represents a stark departure from the well-settled principle that res judicata bars a subsequent claim if and only if congruence of "(1) subject matter; (2) cause of action; (3) persons and parties; and (4) the quality of the persons for or against whom the claim is made" exists, Rains, 100 Wn.2d at 663, and threatens to undermine the doctrine in nonelection cases as well. Perhaps this language is sugar coating a poison pill - because I see no principled distinction between application of this newly invented doctrine to election contests and any other case.
¶56 While it is true in the abstract that a party with a "significant stake in the outcome"«9» of an election contest who "invest[s] significant resources in pursuing all viable grounds"«10» may also share the four concurrences of identity discussed above with a subsequent petitioner, it is not automatic and has not been demonstrated in this case. The concerns regarding conflicting verdicts in multiple jurisdictions, uncertainty regarding outcomes, and inefficient use of judicial resources raised by the majority in support of its approach are by no means unique to election contests and do not justify diluting the strict requirements of a doctrine, which can, if misapplied, strike at the heart of a person's right to access the judiciary.
¶57 Moreover the Borders petitioners waived their right to appeal, hardly evidencing vigorous pursuit of "all viable grounds." Had they done so we would likely have a published precedent from this state's highest court which would either support or undermine Ms. Karr's claims - a disincentive for further litigation on her part or anyone else's, probably also avoiding some of the practical objections the majority posits.
«9» Majority at 502 n.4.
¶58 Ms. Karr has the statutory right to contest this election in court. This election contest is not barred by the doctrine of res judicata because she is not in privity with the parties in the Borders contest and has invoked a distinct statutory cause of action in her affidavit.
J.M. JOHNSON, J., concurs with SANDERS,J.

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PHILIPPINE BANK OF COMMUNICATIONS, Petitioner, v. BASIC POLYPRINTERS AND PACKAGING CORPORATION, Respondent.
WHEREFORE, the instant petition is hereby DISMISSED. ACCORDINGLY, the Order dated January 11, 2008 of the Regional Trial Court of Imus, Cavite, Branch 21, is hereby AFFIRMED.
On February 27, 2004, Basic Polyprinters, along with the eight other corporations belonging to the Limtong Group of Companies (namely: Cuisine Connection, Inc., Fine Arts International, Gibson HP Corporation, Gibson Mega Corporation, Harry U. Limtong Corporation, Main Pacific Features, Inc., T.O.L. Realty & Development Corp., and Wonder Book Corporation), filed a joint petition for suspension of payments with approval of the proposed rehabilitation in the RTC (docketed as SEC Case No. 031-04).4 The RTC issued a stay order, and eventually approved the rehabilitation plan, but the CA reversed the RTC on October 25, 2005,5 and directed the petitioning corporations to file their individual petitions for suspension of payments and rehabilitation in the appropriate courts.
Finding the petition sufficient in form and substance, the RTC issued the stay order dated August 31, 2006.8 It appointed Manuel N. Cacho III as the rehabilitation receiver, and required all creditors and interested parties, including the Securities and Exchange Commission (SEC), to file their comments.
Petitioner’s primary business is in the printing business. Based on its updated financial report, the financial condition has greatly improved.
The projected cash flow attached to the report and the repayment program demonstrates the ability of the company to settle its debt liability.
1. The petitioner has a positive net worth and inventory that can be converted into resources.
2. The Plan ensures preservation of assets, optimizes recovery of creditors’ claims and provides of an orderly payment of debts.
3. The plan will restore petitioner to profitability and solvency and maintain it as an on-going concern to the benefit of the stockholders, investors and creditors.
4. The rehabilitation and the continuous operation of the company will generate employment.
5. The plan is endorsed by the Rehabilitation Receiver.
CONSIDERING THE FOREGOING, the Court hereby approves the detailed Rehabilitation Plan including the Receiver’s Report and Recommendations and its clarifications and corrections and enjoins the petitioner to comply strictly with the provisions of the plan, perform its obligations thereunder and take all actions necessary to carry out the plan, failing which, the Court shall either, upon motion, motu proprio or upon the recommendation of the Rehabilitation Receiver, terminate the proceedings pursuant to Section 27, Rule 1 of the Interim Rules of Procedure on Corporate Rehabilitation.
The Rehabilitation Receiver is directed to strictly monitor the implementation of the Plan and submit a quarterly report on the progress thereon.
PBCOM appealed to the CA in due course.
PBCOM moved for reconsideration,16 but its motion was denied.
Basic Polyprinters refutes the petitioner, saying that the petitioner raises factual issues improper under Rule 45 of the Rules of Court; that as long as the rehabilitation court found that the petitioning corporation could still be rehabilitated, its findings of fact should be binding when they were supported by substantial evidence; that the independent appraisal report by PAVI was unauthorized by the RTC; and that the validity of the rehabilitation plan could be upheld for its complete satisfaction of the requirements of Section 5, Rule 4 of the Interim Rules.
In fine, we shall determine whether the approval of the rehabilitation plan was proper despite: (a) the alleged insolvency of Basic Polyprinters; and (b) absence of a material financial commitment pursuant to Section 5, Rule 4 of the Interim Rules.
We reverse the judgment of the CA.
We disagree with the contention of the petitioner.
Consequently, the basic issues in rehabilitation proceedings concern the viability and desirability of continuing the business operations of the petitioning corporation. The determination of such issues was to be carried out by the court-appointed rehabilitation receiver,25cralawred who was Cacho in this case.
Moreover, Republic Act No. 10142 (Financial Rehabilitation and Insolvency Act (FRIA) of 2010), a law that is applicable hereto,26 has defined a corporate debtor as a corporation duly organized and existing under Philippine laws that has become insolvent.27 The term insolvent is defined in Republic Act No. 10142 as “the financial condition of a debtor that is generally unable to pay its or his liabilities as they fall due in the ordinary course of business or has liabilities that are greater than its or his assets.”28 As such, the contention that rehabilitation becomes inappropriate because of the perceived insolvency of Basic Polyprinters was incorrect.
The petitioner next argues that Basic Polyprinters did not present any material financial commitment in the rehabilitation plan, thereby violating Section 5, Rule 4 of the Interim Rules, the rule applicable at the time of the filing of the petition for rehabilitation. In that regard, Basic Polyprinters made no commitment in relation to the infusion of fresh capital by its stakeholders,29 and presented only a “lopsided” protracted repayment schedule that included the dacion en pago involving an asset mortgaged to the petitioner itself in favor of another creditor.
However, these financial commitments were insufficient for the purpose. We explain.
The commitment to add P10,000,000.00 working capital appeared to be doubtful considering that the insurance claim from which said working capital would be sourced had already been written-off by Basic Polyprinters’s affiliate, Wonder Book Corporation.34 A claim that has been written-off is considered a bad debt or a worthless asset,35 and cannot be deemed a material financial commitment for purposes of rehabilitation. At any rate, the proposed additional P10,000,000.00 working capital was insufficient to cover at least half of the shareholders’ deficit that amounted to P23,316,044.00 as of June 30, 2006.
We also declared in Wonder Book Corporation v. Philippine Bank of Communications (Wonder Book)36 that the conversion of all deposits for future subscriptions to common stock and the treatment of all payables to officers and stockholders as trade payables was hardly constituting material financial commitments. Such “conversion” of cash advances to trade payables was, in fact, a mere re-classification of the liability entry and had no effect on the shareholders’ deficit. On the other hand, we cannot determine the effect of the “conversion” of the directors’ and shareholders’ deposits for future subscription to common stock and substituted liabilities on the shareholders’ deficit because their amounts were not reflected in the financial statements contained in the rollo.
Basic Polyprinters’s rehabilitation plan likewise failed to offer any proposal on how it intended to address the low demands for their products and the effect of direct competition from stores like SM, Gaisano, Robinsons, and other malls. Even the P245 million insurance claim that was supposed to cover the destroyed inventories worth P264 million appears to have been written-off with no probability of being realized later on.
We observe, too, that Basic Polyprinters’s proposal to enter into the dacion en pago to create a source of “fresh capital” was not feasible because the object thereof would not be its own property but one belonging to its affiliate, TOL Realty and Development Corporation, a corporation also undergoing rehabilitation. Moreover, the negotiations (for the return of books and magazines from Basic Polyprinters’s trade creditors) did not partake of a voluntary undertaking because no actual financial commitments had been made thereon.
Worthy of note here is that Wonder Book Corporation was a sister company of Basic Polyprinters, being one of the corporations that had filed the joint petition for suspension of payments and rehabilitation in SEC Case No. 031-04 adverted to earlier. Both of them submitted identical commitments in their respective rehabilitation plans. As a result, as the Court observed in Wonder Book,37 the commitments by Basic Polyprinters could not be considered as firm assurances that could convince creditors, future investors and the general public of its financial and operational viability.
Due to the rehabilitation plan being an indispensable requirement in corporate rehabilitation proceedings,38 Basic Polyprinters was expected to exert a conscious effort in formulating the same, for such plan would spell the future not only for itself but also for its creditors and the public in general. The contents and execution of the rehabilitation plan could not be taken lightly.
We are not oblivious to the plight of corporate debtors like Basic Polyprinters that have inevitably fallen prey to economic recession and unfortunate incidents in the course of their operations. However, we must endeavor to balance the interests of all the parties that had a stake in the success of rehabilitating the debtors. In doing so here, we cannot now find the rehabilitation plan for Basic Polyprinters to be genuine and in good faith, for it was, in fact, unilateral and detrimental to its creditors and the public.
ACCORDINGLY, the Court GRANTS the petition for review on certiorari; SETS ASIDE and REVERSES the decision promulgated on December 16, 2008 and the resolution promulgated on April 22, 2009, both by the Court of Appeals, as well as the order issued on January 11, 2008 by the Regional Trial Court approving the rehabilitation plan submitted by Basic Polyprinters and Packaging Corporation; DISMISSES the petition for suspension of payments and rehabilitation of Basic Polyprinters and Packaging Corporation; and DIRECTS Basic Polyprinters and Packaging Corporation to pay the costs of suit.
1Rollo, pp. 53-71; penned by Associate Justice Monina Arevalo-Zenarosa (retired), with Associate Justice Regalado E. Maambong (retired/deceased) and Associate Justice Arturo G. Tayag (retired), concurring.
21 Rule 2, Section 1 of the Rules of Procedure on Corporate Rehabilitation, effective January 19, 2009, supplanting the Interim Rules of Procedure on Corporate Rehabilitation (A.M. No. 00-8-10-SC, as amended).
22Philippine Veterans Bank Employees Union-N.U.B.E. v. Vega, G.R. No. 105364, June 28, 2001, 360 SCRA 33, 39; Ruby Industrial Corporation v. Court of Appeals, G.R. Nos. 124185-87, January 20, 1998, 284 SCRA 445, 460.
23 G.R. No. 179558, June 1, 2011, 650 SCRA 172.
25cralawred Section 12(e), A.M. No. 00-8-10-SC, as amended.
26 See Section 2, A.M. No. 12-12-11-SC, or the Financial Rehabilitation Rules of Procedure (2013).
27 Section 4(k) Debtor shall refer to, unless specifically excluded by a provision of this Act, a sole proprietorship duly registered with the Department of Trade and Industry (DTI), a partnership duly registered with the Securities and Exchange Commission (SEC), a corporation duly organized and existing under Philippine laws, or an individual debtor who has become insolvent as defined herein.
28 Section 4(p), R.A. No. 10142.
30Wonder Book Corporation v. Philippine Bank of Communications, G.R. No. 187316, July 16, 2012, 676 SCRA 489, 505.
31 Balgos, Interim Rules of Procedure on Corporate Rehabilitation (2006), p. 63.
34Wonder Book Corporation v. Philippine Bank of Communications, supra note 29, at 506-507.
35 Available at http://www.oxforddictionaries.com/us/definition/amerian_english/write-off (visited October 8, 2014.
38Siochi Fishery Enterprises, Inc. v. Bank of the Philippines Islands, G.R. No. 193872, October 19, 2011, 659 SCRA 817, 831.

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COMMONWEALTH vs. IRVIN HARRIS GILBERT.
INDICTMENTS found and returned in the Superior Court on April 15, 1977.
The cases were tried before Tisdale, J., and motions for a new trial were heard by him.
John C. Bryson, Jr., Assistant District Attorney, for the Commonwealth.
would be more incriminating of the defendant than the prior statement. The prosecutor did not inform defense counsel of this development. At trial, sometime after the witness had completed his testimony on direct and cross-examination, the defense moved to dismiss or for a mistrial because of an alleged breach of duty by the prosecutor. The motions were denied, and the jury finally brought in verdicts on which judgments were entered convicting the defendant of murder in the second degree of one person and involuntary manslaughter of another. Postconviction motions for a new trial, based on the same alleged breach, were denied. On appeal pursuant to G. L. c. 278, Sections 33A-33G, we affirm the judgments of conviction and the orders denying the new trial. We hold that the prosecutor should have made disclosure to defense counsel, but in all the circumstances the defendant was not prejudiced by the omission. It will be useful in considering the matter to get an idea of the facts as they emerged at trial.
About 11 P.M., Saturday, April 9, 1977, the defendant Irvin Harris Gilbert, known as "China Boy," appeared at 457 Central Street, Springfield. A crap game was in progress in a room on the first floor with as many as eighteen men participating or watching. This was the location currently used for a "floating" crap game long established in Springfield. Sitting at the table (a regulation pool table fitted at one end with a backboard faced with foam rubber) was Clarence Edward ("Holyoke") Jones, the "cutman" who ran the game and took a cut of $1 from each center bet. Kenneth Woods was acting as doorman or lookout.
in the center bet (here Jones would receive his cut) and the $20 bill. The defendant protested that he was owed $15 change, but Logan said he owed nothing and would not give any change. A loud dispute arose. Jones offered the defendant a $10 bill to quiet the affair but the defendant refused it.
At this point the defendant left the house. He returned to the game some ten to fifteen minutes later and renewed the dispute with Logan. There was testimony that he said he was giving Logan one more chance (the defendant testified he might have said that), and further testimony (which the defendant denied) that he took the dice from the table and said the game would not go on unless he got the change from Logan. Logan again refused to pay. There was conflicting testimony as to whether Logan made any move around the table in the defendant's direction. The defendant drew a pistol from his pocket and shot seven rounds. One bullet lodged behind Logan's left ear, another in his upper back. A third bullet struck Jones above his left ear. There was a scramble among those present to get out of the house. The defendant left without hindrance through the front door. Jones died before arrival of an ambulance. Logan died some hours later on the operating table.
The defendant departed for New York shortly after the shooting, disposing of his pistol (which he said he had carried habitually and was carrying on the fatal day) by taking it apart and discarding the parts. Some days later, in the company of counsel, he surrendered to the Springfield police.
Indictments were returned against the defendant on April 15, 1977, for the murders of Logan and Jones. On May 31, a judge of the Superior Court granted the defendant's motion for the disclosure by the Commonwealth of statements of Commonwealth witnesses "[w]ritten or oral reduced to writing under guidelines of Lewinski case." Accordingly the prosecutor made available statements taken from witnesses shortly after the homicides and put in writing by the police.
As already indicated, on this appeal the only point argued relates to a witness statement. It was that given by the doorman Woods to the police.
Woods testified as a Commonwealth witness on the second day of trial, January 11. On direct examination he said he was present at the original argument between the defendant and Logan, which he described in substance as it is recounted above. He opened the house door to readmit the defendant and saw and heard the defendant's insistence that Logan make good the $15. The defendant picked up the dice and said (addressing Jones) if he wanted the game to go on, he should tell Logan to give the defendant his money; Jones said he had offered the defendant money, the defendant was always trying to break up the game. Woods turned and started toward the kitchen. He thought Logan used vile language, but Logan wasn't moving at the defendant. At the door of the kitchen, Woods looked around. The defendant had a gun in his hand; someone had knocked the defendant's gun hand in the air; there was a shot. Woods jumped into the kitchen. He heard three shots, then three more shots, but he did not see the firing. Later Woods went to the second floor to call the police.
When Woods was taken in cross-examination on the following day, January 12, not only was his direct testimony attacked in detail, but it was brought out at length that that testimony was substantially different from the statement he had given Captain James F. Williams and Lieutenant Ernest Stelzer at 6:35 A.M. on April 10, 1977, within a few hours of the shooting, as recorded by them in twenty-four lines of typing. In that statement Woods said he had been present at the first argument and the commencement of the second but had then gone to the second floor "for something," and while there had heard several shots. He went downstairs and saw the defendant leave with a gun in his hand. He went upstairs to call the police.
Woods's explanation for the differences between the statement and his testimony was that the former was a "misprint"; but it is not hard to see at work Woods's reluctance on the morning to tell a full damning story against a gambling acquaintance. The examiner went on to ask whether Woods had ever sought to correct the "misprint." Woods said he told the assistant district attorney about it the day before he took the stand. It appeared from later redirect examination of Woods that the assistant district attorney on hearing the new story simply told Woods to tell the truth in court. He did not inform defense counsel of Woods's change of stance.
Examination of Woods was completed on January 13. It appears that the motions to dismiss or for a mistrial were made on January 16.
be read by reference to (a)(2) to point to written statements, we think its penumbral effect in the circumstances of the present case would be to require notification to the defense of the changes in Woods's story. Under the similar prescription of a continuing duty in Fed. R. Crim. P. 16(c) (formerly appearing in substance in rule 16[g]), we think the courts would reach that result. See United States v. Lewis, 511 F.2d 798 (D.C. Cir. 1975); [Note 6] United States v. Crow Dog, 532 F.2d 1182, 1188-1189 (8th Cir. 1976), cert. denied, 430 U.S. 929 (1977).
Of course, all this is subject to a rule of reason. It is not shifts of detail on the part of a prospective witness happening to come to the attention of counsel that must be reported to opposing counsel. Here, however, we have changes of substance which in themselves were damaging to the defense.
Concluding that the prosecutor should have made the disclosure, we nevertheless hold, in view of the entire background of the case, that there was no abuse of discretion in the implicit finding of the trial judge that the defendant was not prejudiced by the prosecutor's lapse (see United States v. Joyner, 494 F.2d 501, 507 [5th Cir.], cert. denied, 419 U.S. 995 ), and, accordingly, the denial of a sanction of dismissal, mistrial, or new trial should not be disturbed.
and the court accepted, a plea of manslaughter as to the Logan homicide with some corresponding plea regarding Jones. But the assistant district attorney, answering the argument, stated without challenge that the Commonwealth had held out against any such plea from the outset and had determined to go to trial on the indictments. As Woods's "corrected" testimony was stronger for the prosecution than the testimony envisaged by the written statement, the prosecutor's attitude toward a plea bargain might be expected to harden rather than the opposite. Of course the defense was not stopped from negotiating with the Commonwealth after Woods gave his testimony. As far as appears there was no attempt at discussion. The result of discussion, had it taken place, would in all events have been highly speculative.
that the defense did not seek a continuance after Woods's direct examination. See United States v. Johnson, 562 F.2d 515, 518 (8th Cir. 1977); United States v. Crow Dog, supra at 1188-1189; Holt v. United States, supra at 278.
The defendant may count himself relatively fortunate in suffering convictions for less than first degree murder. The prosecutor's error of judgment [Note 9] did not have such consequences as would justify opening the convictions.
We have examined the record pursuant to G. L. c. 278, Section 33E, and find no basis for mitigating punishment or for other relief in respect to the conviction of murder in the second degree.
Judgments of conviction and orders denying new trial affirmed.
[Note 1] Commonwealth v. Lewinski, 367 Mass. 889 , 900-903 (1975), discussed below.
[Note 2] In fact the judge did not instruct, nor did the Commonwealth seek an instruction, that even if the defendant lacked an intention to harm Jones, but killed Jones by mistake or negligence in the course of murdering Logan, he might, on a theory of so called "transferred intent," be found guilty of the murder of Jones in the same degree as applied to Logan. See W. R. LaFave & A. W. Scott, Jr., Criminal Law Section 35, at 252-255 (1972).
[Note 3] Besides the mandatory life sentence on the murder conviction, the judge sentenced the defendant to a concurrent term of twelve to eighteen years for the manslaughter.
[Note 4] "Written statements for this purpose [disclosure] include any statement made by the witness and in some definite way approved by him, a transcript of a contemporaneous verbatim or substantially verbatim stenographic or other recording of an oral statement by the witness, and a written report consisting of a statement by the witness." 367 Mass. at 902.
[Note 5] Rule 14(a)(4) reads: "Continuing Duty. If either party subsequently learns of additional material which he would have been under a duty to disclose or produce pursuant to any provisions of this rule at the time of a previous discovery order, he shall promptly notify the other party of his acquisition of such additional material and shall disclose the material in the same manner as required for initial discovery under this rule."
Sanctions appear at rule 14(c)(1)-(2).
[Note 6] In this case Judge Lumbard notes that the power of the court to order disclosure in appropriate cases is not confined to the materials mentioned in the bare text of Fed. R. Crim. P. 16. See 511 F.2d at 803 n.8.
[Note 7] As the new story was incriminating rather than exculpatory, the requirements of disclosure laid down in Brady v. Maryland, 373 U.S. 83 (1963), are inapplicable.
[Note 8] A claim of prejudice is perhaps more easily sustained where the new material comes in, not on direct examination where it can be met with cross-examination, but by way of impeachment, as in United States v. Lewis, 511 F.2d 798 (D.C. Cir. 1975). See United States v. Flecha, 442 F. Supp. 1044, 1046 (E.D. Pa. 1977).
[Note 9] We add that this is not shown to be a case where the prosecution withheld material in bad faith; rather we take the lapse to have been inadvertent or careless. See United States v. Baum, 482 F.2d 1325, 1332 (2d Cir. 1973); United States v. Flecha, supra at 1047 n.5. As was said in Pierce v. United States, 414 F.2d 163, 169 (5th Cir.), cert. denied, 396 U.S. 960 (1969), "information may not be withheld with the notion that this can be done with impunity if the evidence is ultimately found not to be helpful to the defense."

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This article presents a comparative analysis between jurisdiction in Brazil and in the USA in two relevant cases given their impact on internet application and technology companies.
On one hand, in Brazil, the technology companies that provide internet application services (such as Google, Facebook, Youtube, etc.) and have headquarters abroad, face issues regarding the interpretation of the Brazilian laws, especially as to the compliance with court orders to submit the contents of private communications stored in their servers.
On the other hand, in the USA, North American technology companies also face issues such as the requisitioning of email content from these service providers, whereas the content of the private communications are stored in servers abroad.
In Brazil, a Direct Motion of Unconstitutionality was filed before the Brazilian Supreme Court under number 51/2017, for the constitutional review of Decree No. 3810/2001 that enacted the Mutual Legal Assistance Treaty between Brazil and the United States, examined below.
In the USA, there is the case United States versus Microsoft, in progress before the USA Supreme Court. The case debates whether email services providers, which have the control over their users personal data, have the legal obligation to disclose the content of electronic communication, even if the material is stored in servers located outside of the USA.
The Federation of the Associations of Information Technology Companies (“ASSESPRO NACIONAL”) filed a declaratory motion of constitutionality (Adcon No. 51/2017 to have Federal Decree No. 3.810/2001 declared constitutional. This Federal Decree enacted the Mutual Legal Assistance Treaty in Criminal Procedures between Brazil and the United States of America. Under this legal statute, a letter of request must be issued in cooperation processes between Brazilian and USA authorities in matters of criminal investigation, prosecution, and crime prevention.
According to the technology company association that filed the motion, many Brazilian courts are not applying the said Decree. That is why the Association filed the direct motion of constitutionality, as it is the proper legal instrument to review the constitutionality of the decree and, thus, its practical application by the Brazilian Courts. The only case in which the Decree should not apply is if it is found to be unconstitutional, which has not yet been declared by the Brazilian courts.
What is happening is that the technology companies with headquarters in the USA that provide internet application services (such as email, social media, digital advertising, etc.) in Brazil are being mandated by the courts to submit the contents of private communications between their users. If they fail to comply with such court orders, the internet application providers are held civilly liable, with the application of severe fines, and criminally liable for the crime of contempt of court.
They argue that internet application providers headquartered in the United States are subject to the laws of that country. In this regard, the laws of the USA impose strict limits to the delivery by internet application providers of the contents of private communications between their users (such as emails).
The argument presented in the case ADCON No. 51 is that, by failing to apply Decree No. 3810/2001, the Brazilian courts are violating the constitutional principles of sovereignty, confidentiality of private communication, the due process of law, equality, and free enterprise.
The Plaintiff also claims that the Brazilian Internet Regulatory Framework does not exclude the application of international treaties to which Brazil is party to. In the present case, the Mutual Legal Assistance Treaty, in the form of Decree No. 3810/2001, is deemed to be a formal law, as it has been received by the Brazilian legal system.
Facebook joined the action as amicus curiae (ADCON No. 51). It claims that its activities are subject to the Electronic Communications Privacy Act. This North American law forbids the disclosure of the content of private communications stored by the electronic communications services providers, notwithstanding the exceptions set in the law itself.
According to the company Facebook Brasil, it does not have managerial control over the data of the company Facebook Inc., based in the United States. Facebook Brasil only voluntarily provides information to Brazilian authorities in case of emergency (risk of death and/or severe bodily harm to a person). Therefore, Facebook Inc. is governed by the United States laws, as is headquartered in that country.
It also claims that the contents of private communications cannot be directly provided to Brazilian authorities, except with a court warrant issued by a U.S Court. According to the company, U.S law does not allow internet application providers to disclose the content of private communications directly due to a Brazilian court order, otherwise the company may be held liable for violation of the U.S law.
Another question is if it is possible to extend the application of Brazilian laws and the Brazilian jurisdiction to companies with headquarters abroad and, respectively, given the sovereignty of the foreign State.
In sum, the case portrayed in ADCON No. 51 is interesting as it deals with the constitutional principles of sovereignty, independence of States, international cooperation, principle of territoriality of jurisdiction, due process of law, and the rights to communication and to privacy of communication.
As for the United States of America, the case of United States V. Microsoft Corporation is in progress before the American Supreme Court. This case regards the possibility of the United States government obtaining, through court orders, the contents of private communications, such as emails, stored in computers/servers/datacenters located outside of that country.
The original case refers to a drug-trafficking criminal investigation, in which the Government requested an order for Microsoft to disclose email information. Microsoft refused to deliver the content of the email, claiming that it changed the email storage location to Ireland, and that the Stored Communications Act cannot be applied outside of U.S territory.
Here is an excerpt from the original brief filed by Microsoft before the U.S Supreme Court: “Whether a United States provider of email services must comply with a probable-cause based warrant issued under 18 U.S.C 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad”. According to the U.S government, grounded on 18 US.C 2703, authorities from that county may require electronic communication providers to disclose the content of communications.
In contrast, Microsoft claims that the American law on electronic communications is applicable only to acts committed within U.S territory. It argues that the Stored Communication Act focuses on protecting the safety of private communications, hence the trust that users have that the electronic communications providers safely store the content of their communications in electronic servers. It also claims that it offers services such as MSN, Hotmail, and Outlook, storing thousands of user emails in data centers located in over 40 countries.
According to Microsoft, the U.S. Congress did not signal that the Stored Communications Act should be applied outside of U.S territory. Thus, a order to copy and import communications stored in foreign territory is an illegal and extraterritorial application of the Stored Communications Act.
Also, according to Microsoft, the Stored Communications Act comprehends solely communications stored in the United States, as the focus of the statute is to protect electronic communications stored and avoid the disclosure of private communications. So, the focus on the disclosure of electronic communications is contrary to the original intent of the American legislators.
The conclusion: “For now, the presumption against extraterritoriality limits the SCA, and the warrant issued under it, to communications stored on U.S. soil”. Moreover, the U.S Congress may update the Stored Communications Act, considering the conflict between the application of the law and international relations with other countries, the privacy of citizens, and the competitiveness of the technological industry.
The European Union, the United Kingdom, New Zealand and Ireland have requested participation in the case United States x Microsoft by filing an amicus curiae brief.
So, as an illustration of the above, the European Union claims that the proper procedure would be to consider the internal laws of the European Community in relation to the protection of personal data, especially in relation to data stored in its territory. The European regulation contains specific rules on the transfer of personal data between countries, especially in relation to non-European countries.
The Brazilian NGO InternetLab, connected to Fundação Getúlio Vargas, filed a petition as amicus curiae in the United States v. Microsoft Corporation case . It claims that Brazil is one of the largest internet markets. U.S. technology companies such as Facebook, Youtube, Google, and Microsoft have millions of users in Brazil. It also claims that the Brazilian laws related to internet application providers is strictly enforced, despite the American electronic communications law that forbids the delivery of private communications content by electronic communications providers.
The NGO also alleged that the Mutual Legal Assistance Treaty between Brazil and the United States, in the form of Decree No. 3810/2011, is the best legal alternative to solve the conflict between the Brazilian and American laws and jurisdictions, and to apply the laws most appropriate to the case, respecting the sovereignty of each country, the due process of law, and the privacy of the users of internet applications.
Another argument presented by InternetLab is that the Internet Regulatory Framework prevents the disclosure of private communications, guaranteeing the users’ right to privacy. Thus, U.S technology companies cannot be forced to directly provide the contents of private communications without a court order from a U.S court. The brief claims that the Brazilian Internet Regulatory Framework offers protection similar to the one purported by the United States Stored Communication Act.
Further, it claims that in the case of the Stored Communications Act (SCA), there is a conflict between two jurisdictions, so the court order has extraterritorial application.
Hence the question posed by InternetLab to the United States Supreme Court, as amicus curiae: “Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C § 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad”.
In this case, the application of two laws on electronic communications puts the internet application provider in a situation of conflict in light of different obligations in each jurisdiction: the United States and Brazil. Hence the need for a solution that grants legal certainty in the application of the law, given the conflict between international laws and jurisdictions, within the realm of the internet.
The conclusion: “This Court should affirm the judgment of the Second Circuit of Appeals and hold that the warrant issued to Microsoft in this matter was an improper extraterritorial application of 18 U.S.C §2703 (b) (1) (A)”.
It must be said that the importance of this case lies in the fact that the ruling by the United States Supreme Court may have repercussions in Brazil, specifically on internet application providers that operate herein, even if headquartered abroad.
It is our opinion that Brazil, within the realm of international cooperation between jurisdictions in a case relevant to internet applications, should also participate in the United States x Microsoft soft case as amicus curiae, such as the European Union, Ireland, and New Zealand have done, given the possible repercussion of the ruling of the United States Supreme Court on the interpretation of its law that will impact technology companies that operate globally.
1 See STF (Brazilian Supreme Court), case Adcon 51, Plaintiff: Federação das Associações das Empresas Brasileiras de Tecnologia da Informação.
2 This is provided in the U.S Stored Communications Act (“SCA”), which forbids electronic communication providers operating under USA jurisdiction to disclose the communications of their respective users, notwithstanding the legal exceptions.
3 Supreme Court of the United States. United States of America v. Microsoft Corporation. On writ of certiorari to the second circuit Court of Appeals. Brief of InternetLab Law and Technology Center as amicus curiae in support of respondent.
4 See: 18 U.S. Code § 2703 – Required disclosure of customer communications or records. A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for on hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State Court), issued using State warrant procedures) by a court of competent jurisdiction. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in a electronic storage in an electronic communications system for more on hundred and eighty days by the means available under subsection (b) of this section”.
5 Supreme Court of the United States. United States of America v. Microsoft Corporation. On writ of certiorari to the second circuit Court of Appeals. Brief of InternetLab Law and Technology Center as amicus curiae in support of respondent.
6 Under this aspect of the U.S electronic communications statute, Google was sentenced to pay a fine of USD 8,5 million in a class action filed by users, under the argument that the provider violated the users’ right to privacy, before third parties.


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In 2013, the president changed the health care law without a vote of Congress, effectively creating his own law by literally waiving the employer mandate and the penalties for failing to comply with it. No president should have the power to make laws on his or her own… The House has an obligation to stand up for the Legislative Branch, and the Constitution, and that is exactly what we will do.
It is the sworn duty of every Congressman to “stand up for the Constitution” and preserve its separation of powers. But standing up for the Constitution entails following the Constitution’s provisions, and Boehner’s suit does not do that. When the end being sought is a Constitutional means of governing, every means to that end must be Constitutional as well.
If Boehner’s suit succeeds, it will destroy rather than preserve the separation of powers. Boehner’s suit cannot proceed unless the Supreme Court abandons the political question doctrine. This fundamental rule of jurisprudence holds that political disputes are beyond the power of the judicial branch if they involve the legislative or executive branches of the federal government. This doctrine preserves the separation of powers. The judicial branch cannot resolve these disputes without elevating its powers over those of the executive and legislative branches.
The Constitution provides two ways for the House to remedy an imperious president AND preserve the separation of powers. The first remedy is the House’s power over the purse. The Appropriations Clause of the Constitution (art. I, sec. 9) provides that no federal money can be spent without an appropriation from Congress. The Origination Clause (art. I, sec. 7) mandates that all revenue bills must originate in the House of Representatives. These two clauses give the House complete control over federal spending. Furthermore, the Speaker of the House controls which bills come to the floor. Boehner can prevent, by himself, any revenue measures from passing the House.
The House’s second remedy for an imperious president is impeachment under Article I, section 2. Some will argue that impeachment is not politically viable because conviction requires a 2/3 vote of the Senate. This argument misconstrues the House’s role under the Constitution.
Impeachments are not trials for impeachment. They are separate proceedings in separate bodies for separate purposes. Impeachment in the House is designed to discipline a president that abuses his constitutional responsibilities. Trial in the Senate is designed to remove a president from office.
Every member of the House has a duty to impeach any president who threatens the Constitution. Each has a sworn duty “to fully and faithfully defend the Constitution against all enemies, foreign and domestic.” The duty to impeach depends on what the president is doing, not on what the Senate might do. Article II, section 4 adopts the phrase “High Crimes and Misdemeanors” from the history of impeachments in England. “Misdemeanors” means simply “misdeeds” and requires no criminal conduct.
Unfortunately, Boehner rejects both Constitutional remedies, and his decision to sue is a lose-lose proposition. If Boehner loses, Obama will be emboldened to more misdeeds. If Boehner wins, however, it means the Supreme Court has abandoned the political question doctrine.
The political question doctrine maintains the separation of powers by prohibiting the judicial branch from resolving political disputes involving the legislative or executive branches. The Supreme Court has therefore applied the political question doctrine in refusing to hear cases involving foreign relations, Martin v. Mott (1827), Constitutional amendments, Coleman v. Miller (1939), disputes regarding Congressional elections, Roudebush v. Hartke (1972), disputes regarding political party conventions, O’Brien v. Brown (1972), management of the military, Gilligan v. Morgan (1973), and impeachment trials in the Senate, Nixon v. United States (1993).
Boehner’s suit falls squarely within the political question doctrine. The Supreme Court established four criteria for the existence of a political question in Baker v. Carr (1962). The first is a textually demonstrable constitutional commitment of the issue to the political branches of the government. The second is a lack of manageable standards for judicial resolution. The third is a need for finality in the action of the political branches. The fourth is the difficulty or impossibility of devising effective judicial remedies.
Boehner’s suit satisfies all the Baker criteria. The Constitution, for example, “textually commits” control of imperious presidents to the House through its powers over the purse and impeachment. Since all four Baker criteria are met, Boehner must persuade the Supreme Court to abandon the political question doctrine. Otherwise, his suit will be dismissed.
Such a holding would be disastrous. Boehner’s cure would be significantly worse than Obama’s disease. It would destroy the separation of powers by enthroning the Supreme Court as the supreme authority in every political issue. All our liberties would be subject to a case-by-case majority vote of the Supreme Court. As Justice Scalia wrote in District of Columbia v. Heller (2008), “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” A shift of just one justice on the Hobby Lobby Court would have subjugated our religious liberty to the abortion industry.
Let us remember why the separation of powers matters. The founders did not invent this idea. Three “simple” forms of government, monarchy, aristocracy, and democracy, dominated the West in ancient times. Each “simple” constitution had strengths, but each eventually became tyrannical and was ultimately overthrown. This cycle of tyranny and revolt was so common that it received its own name, anacyclosis.
The Greek historian Polybius (c. 200 BC – c. 118 BC) and the Roman statesman Cicero (106 B.C.-43 B.C.) shared a brilliant insight. Beginning with Sparta in the seventh century B.C., constitutions that merged elements from the three “simple” constitutions into a single “mixed” constitution escaped this cycle of tyranny and revolt. Sparta, Carthage, and Rome all prospered under mixed constitutions. Separation of powers maintained the mixed nature of these constitutions. Montesquieu’s The Spirit of the Laws (1748) followed Polybius and emphasized the separation of powers to maintain a constitutional government.
The United States Constitution adopted these principles. To minimize the potential for tyranny, a “mixed” constitution was established with three branches. Each branch emulated a “simple” form of constitution. Their powers were separated to prevent any single branch from gaining enough power to destroy the “mixed” nature of the constitution. Checks and balances, such as the House’s powers over the purse and impeachment, were created to maintain this separation of powers.
Unfortunately, no constitution can enforce itself. Obama has taken our country to its Constitutional tipping point, just as the Stuart kings did in seventeenth century England. Our leaders must use the solutions provided in the Constitution to solve this crisis while maintaining the separation of powers. If they lack the will to do so, if they are intimidated by fear of media criticism or losing their office, then the American people must replace them.
Sparta, Carthage, and Rome lost the political discipline required to maintain the separation of powers. They abandoned their mixed constitutions, and history soon abandoned them. There is no reason to believe that a different outcome awaits the United States if we follow their path.
As Christians we are obligated to obey man’s laws, Romans 13:1, so long as they do not violate God’s laws, Acts 5:27-29. The Constitution is the law of the land. We are obligated to follow it, and we must demand that our leaders do the same.
I do not like to talk on the politics, but people in America have a much better standard than people in the Balkans.
I expect the Supreme Court to duck this issue, in which case Boehner will be back to his original two choices — de-funding or impeachment. Since neither has worked for Republicans in the recent past, Boehner will find he has raised the bet, while playing a losing hand.

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