An email today from Ross Eagle advises that Diana L. Kenworthy has secured the Democratic Party's endorsement for one of the three 10th Subcircuit seats open in the coming primary.
The other two endorsed candidates in the 10th Subcircuit, Eagle advises, are Judge James E. Snyder, appointed by the Supreme Court in March to the fill Kowalski vacancy, and Judge Kenneth Fletcher, who was appointed to the Pucinski vacancy.
But Eagle wanted to call my particular attention to Ms. Kenworthy's slating, and for good reason: He's Kenworthy's campaign treasurer. He's also Kenworthy's law partner -- their firm is Jester, Kenworthy & Eagle LLC -- and he's also her husband.
A lawyer since 1995, Kenworthy started her legal career in the Public Defender's office. She holds undergraduate and law degrees from The Ohio State University. Here's a link to the Kenworthy campaign website; the picture which accompanies this post was obtained at that site.
Who's running for judge this year? A lot of men and women who are thinking very seriously about making a run came to Judge Moshe Jacobius' ceremonial courtroom on the 19th floor of the Daley Center last night to hear tips and advice about how to make a successful bid for the bench.
Pictured above are most of the speakers and some of the sponsors of last night's program. From left to right (first row), Kamilah Parker, Assistant State's Attorney Z. Williams (First VP of the Cook County Bar Association), Judge Marjorie C. Laws, Judge Patrick E. McGann, Judge Sandra R. Otaka, Associate Judge Mathias W. Delort, and Judge Sebastian T. Patti; second row, Associate Judge Leonard Murray, Matthew Jannusch of the Lesbian and Gay Bar Association and Carl Turpin (President of the CCBA).
Ms. Williams provided the welcome on behalf of the sponsoring organizations and Judge Murray served as emcee.
Judge McGann led off the evening's speakers with a talk about ethics and a friendly warning: Judicial candidates are subject to discipline for violation of the Cannons of Judicial Ethics (see Illinois Supreme Court Rule 67 and Rule 8.2 of the Illinois Rules of Professional Conduct). Judge McGann discussed the Supreme Court case of Republican Party of Minnesota v. White, 536 U.S. 765 (2002), and what sorts of opinion disclosures may be appropriate for a judicial candidate. I suspect that this will be a topic for future posts as various interest groups send questionnaires to judicial hopefuls.
Judge Murray stepped out of his role as emcee next and spoke about nominating petitions and other prerequisites for getting on the ballot. The large audience -- most of whom are circulating petitions right now -- had a great many technical questions for Judge Murray who, like Judge Delort, practiced as an election lawyer before going on the bench.
Judge David Delgado (who is not shown in the accompanying picture) spoke next about the passion that a candidate must have in order to succeed in the election process. "You have to want it," he stressed, repeatedly, "and you have to have a plan." And, he suggested, a candidate must be prepared for "moments of darkness" when things will appear very bleak to a candidate. A candidate must, he said, surround himself with "positive people."
Judge Delgado was elected from Cook County's 6th Subcircuit. Judge Marjorie Laws, who spoke next, was elected from the 2nd Subcircuit.
Judge Laws asserted that an extensive political résumé is not required before becoming a candidate -- she had no substantial political experience, she told the audience, but she sought out, and obtained, political support when she undertook her candidacy. You have to get close to the politicians, she told the group.
Judge Laws suggested that churches are wonderful places to get votes and taverns are good places to obtain petition signatures. With children at home, Judge Laws said, she was initially content to let her husband go to the taverns in the evening looking for signatures -- but he reported back that people wanted to see the candidate: She had to go, too.
One night, Judge Laws told the group, she was in a long, narrow tavern, shaking hands and greeting patrons and following her husband, who was holding the clipboard for signatures. Suddenly he doubled back. "We have to go now," he told his wife, and began leading her from the premises. Judge Laws was surprised; she thought that things were going well.
Judge Sebastian T. Patti was the only one of last night's speakers who'd been elected countywide. The audience gasped when he revealed how much he raised -- and spent -- in 1996. Campaigns are only more expensive now, he cautioned the audience, and the county has gotten no smaller. He suggested that a candidate would need a driver to maximize the ability to cover events on either side of the county in a single day; valuable time is lost while getting one's car from a parking garage. He suggested that a candidate might want to consider taking a leave of absence from his or her job to make the run; at the very least, he said, a candidate will need to take the last two or three weeks off before the primary.
Judge Sandra R. Otaka was elected from the 9th Subcircuit. She is proud to be the first Asian American elected judge in Cook County and she told the audience how all the politically savvy people told her that this was impossible. (The 9th Subcircuit has traditionally elected Jewish candidates.) Judge Otaka had some very practical, nuts and bolts advice about precinct analysis and organization and how to allocate resources.
The panelists thereafter fielded questions from the audience. Practical advice was dispensed in equal proportion with encouragement. Other organizations sponsoring last night's event were the Asian American Bar Association, Black Women Lawyers' Association of Greater Chicago, the Illinois Judicial Council, and the Puerto Rican Bar Association of Illinois.
I had an email this evening from Judge Thomas R. Mulroy, who is already advertising on Pace buses, trying to call attention to his substantial credentials.
Fat lot of good I've done him so far: I initially mistook his ads for those of another candidate. It's my belief (based on personal experience, not academic study) that ads tend to reinforce or shape impressions already formed. Thus, in seeing an ad on a bus, catching that it was for a judicial candidate, I mistakenly attributed it to someone with a similar name (John Mulroe -- whose campaign treasurer was the first to point out my mistake).
And it's clever: "Life's not fair. Elect a judge who is."
The caption may be a little hard to read at this size (even if you've clicked to enlarge) but it says, "Oh, put a sign on a bus saying you've become a judge..."
I'm certain that Judge Mulroy received this advice, in as many words, from someone. But the point is that these are whimsical ads and I think people will respond favorably to them. It's a good way of livening up the campaign... because judicial campaigns can be... well... rather dry.
Effective yesterday, September 24, Demetrios G. Kottaras was appointed to fill the vacancy created by the retirement of Judge Gay-Lloyd Lott. Mr. Kottaras received his B.S. from Northwestern University in 1979 and his J.D. from Chicago-Kent in 1984. He has served as the Supervisor of the Financial Crimes Unit in the Cook County State's Attorney's Office in Cook County, as an adjunct faculty member at Chicago-Kent, and as a Director of the Hellenic Bar Association.
I had a nice email late yesterday from Jeanne Anderson, who identifies herself as a staffer for John Mulroe's judicial campaign, charged, among other things, with managing Mulroe's "online presence."
Ms. Anderson was checking in because of this September 8 post in which I said I saw Mulroe signs on a bus on Harlem Avenue.
No, Ms. Anderson wrote, her candidate does not yet have any signs on buses. "I'm pretty sure I know the ads you're speaking of," she added. "I take Harlem Avenue to and from Loyola Academy several times a week and have frequently found myself behind a #423 Pace bus with a Thomas Mulroy campaign sign on its rear."
I'm sure that must be what I saw.
In my defense I can only say that I was driving kids to school myself and was paying more attention to the direction of the bus than to its advertisements.
Anyway, Thomas R. Mulroy, most recently a partner at McGuire Woods LLP, was appointed to the bench by the Supreme Court in February of this year. Mulroy has also run his own firm and was with Jenner & Block for many years, serving at one point as head of that firm's Intellectual Property Department and finance committee. Mulroy has been an adjunct professor of trial practice at Loyola since 1983 and has taught at both the Northwestern and DePaul Schools of Law.
Stephen Anderson's article for the ISBA about Mulroy's appointment is online here.
So. I'm glad to clear that up.
Please note that the Mulroe campaign has not ruled out advertising on buses. Ms. Anderson is also John Mulroe's campaign treasurer, she says, and she hopes "we soon have the funds to afford that kind of exposure." Toward that end, I notice, there's a fundraiser for the Mulroe campaign Friday, September 28 at Blackthorn Manor, 7280 W. Devon, Chicago, from 6:00 to 9:00pm. You can download an invite by clicking on the Mulroe link at the top of this post.
Tom Biesty, a veteran prosecutor who's been associated with the Cook County State's Attorney's cold case unit, and who recently prosecuted Juan Luna for his part in the 1993 Palatine Brown's Chicken massacre, is running for judge in the 10th Subcircuit.
Biesty's wife, Mary, a teacher at Sauganash Elementary School in Chicago, was circulating petitions at Notre Dame High School in Niles this morning. It was a good place to pick up valid signatures: The school was hosting Homecoming for St. Tarcissus Grade School and the stadium was packed -- and, as a bonus, there was a Notre Dame freshman football game before the St. Tars games.
In conversing with Mrs. Biesty, I learned that Judge Dennis J. Morrissey will be stepping aside, leaving a third vacancy in the 10th Subcircuit. Here's a link to the updated vacancy list (as of September 19).
I first saw mention of this story on The Capitol Fax Blog but the full details are to be found at Eric Zorn's blog, Change of Subject. Mr. Zorn (or Professor Zorn, as he is known to readers of Neil Steinberg's columns) also provides a link to a file-stamped copy of Judge Maddux's Complaint. Maddux is represented in this matter by David A. Novoselsky, Benjamin Novoselsky, Leslie J. Rosen, and James J. Ayres of the Novoselsky Law Offices.
A September 12 Law Bulletin story about this suit pointed out that Benjamin Novoselsky (David's father) is 92 -- and only recently retired from the bench. Stephanie Potter's Law Bulletin story quoted David Novoselsky, speaking of his father, "A day before he retired at age 90, he was handling two other judges' calls as well as his own.... He's as active now as he was on the bench."
One suspects that Judge Novoselsky's involvement in this particular suit is not entirely coincidental.
A link to Pallasch's article is here.
Do not hold your breath waiting for a similar story from the Tribune.
But it would be nice if both major newspapers in Chicago devoted as many column-inches to the election of judges in Cook County as they do to Hillary Clinton's wardrobe choices or the cost of John Edwards' haircuts.
I will not, however, hold my breath waiting for this to happen.
A healthy sense of skepticism is required when clicking around on the Internet.
Until a July Florida appeals court ruling, Mark O'Hara, 45, had been in prison for two years of a 25-year mandatory-minimum for trafficking in hydrocodone, based solely on the 58 tablets found in his possession in 2004, even though his supply had been lawfully prescribed by a physician. The state attorney in Tampa had pointed out that Florida law did not mention a "prescription" defense to trafficking, and even though O'Hara had lined up a doctor and a pharmacist to testify, the jury wasn't allowed to consider the issue. After the appeals court called the case "absurd" and ordered a new trial with the prescription evidence allowed, the state attorney still refused to drop the case.
Now this seemed a bit far-fetched.
Imagine my surprise then when, checking out the story on Westlaw (subscription required), I found O'Hara v. State, --- So.2d ----, 2007 WL 2042821 (Fla.App. 2 Dist. 7/18/07).
Although the Florida court did in fact call the State's construction of the relevant statutes "absurd," it did not laugh the case against O'Hara out of court: The bottom line is that there was an explicit prescription exemption in the possession statute but not in the trafficking statute. Of course, if one is going to sell drugs, whether he acquires his inventory in a street corner transaction or via a seemingly legitimate prescription is really irrelevant, isn't it?
Standing alone, that proposition is absurd. But it is even more so when considering that the unwitting patient's criminal "culpability" would be less if only his doctor chose to prescribe his pain medication in another, more powerful, form. A Vicoprofen tablet contains 7.5 milligrams of hydrocodone, and its recommended dosage is one tablet every four to six hours to a maximum of five in 24 hours.
Mr. O'Hara's troubles may not be over, however. The Florida court reversed O'Hara's conviction, but remanded for a new trial.
An August 21 article in St. Petersburg Times confirms that the local prosecutor intends to retry O'Hara. Sounds weird to me.
The Cook County Bar Association, Asian American Bar Association, Black Women Lawyers' Association of Greater Chicago, Illinois Judicial Council, Lesbian and Gay Bar Association and Puerto Rican Bar Association of Illinois are sponsoring a seminar for judicial candidates seeking election in 2008.
"Getting on the Judicial Ballot and Winning" will be held from 5 p.m. to 7 p.m. on Sept. 27 in room 1905 of the Daley Center. Registration is not required.
Speakers are Cook County Circuit Judges David Delgado, Marjorie C. Laws, Sandra R. Otaka and Sebastian T. Patti and Associate Judge Mathias William Delort.
Before ascending to the bench, Judge Delort was a specialist in election law.
The Law Bulletin article adds that the program will cover "commonly litigated election law issues, effective countywide judicial campaigns, effective subcircuit judicial campaigns and campaign finance."
A per curiam order disposes of a motion to dismiss the appeal in the case of In re American Safety Indemnity Co., --- F.3d ---, 2007 WL 2492815 (2nd Cir. 9/6/07). The appellee argued that the appeal was filed too late. The appellant argued that its attorney called the district judge's chambers and asked which of two possible orders started the clock running for the planned appeal. The appellant claimed that it relied on what the judge's clerk told its attorney.
Thanks to Chicago attorney Bob Moss who posted this quote yesterday on the ISBA Listserv.
This is my nominee for Recidivist of the Month.
Meet Edward Magenheimer, age 70, of Elmsford, New York.
Mr. Magenheimer underwent heart bypass surgery earlier this year. In July, he entered a guilty plea to charges that he bilked three little old ladies out of several thousand dollars. According to a story by Nicole Neroulias of The Journal News, and posted at Lower Hudson Online, it was just last Thursday that Magenheimer was sentenced to a year in the Westchester County Jail on these charges -- and only Monday that he was released "with time served and one-third off for good behavior."
But, according to the policy in Tarrytown, New York, Magenheimer's behavior didn't stay good.
Early yesterday morning, shortly after 6:00 a.m., Magenheimer allegedly happened upon a "1996 white Jaguar that its owner had left parked and running at Spadaccia's Deli on Route 9A in Elmsford." He hopped in and took off toward Tarrytown... where he was nabbed in under 20 minutes.
Maybe he liked prison food.
I first saw the story this morning on Yahoo! News; the image in this post is taken from Lower Hudson Online.
The Illinois Supreme Court recently appointed Furmin D. Sessoms to the 5th Subcircuit vacancy opened by the resignation of Judge Bernetta D. Bush.
Sessoms, according to Sullivan's Judicial Profiles, has an undergraduate degree from the University of California-Berkeley and a law degree from Georgetown. Licensed in Illinois since 1990, Sessoms began his legal career with the Cook County Public Defender's Office. After a seven-year stint in private practice, Sessons rejoined the PD's office, this time as "as chief of the 4th Municipal District Office and, immediately prior to joining the bench, as Deputy Public Defender."
Sessoms' appointment has sparked a controversy.
The Chicago Tribune in a September 2 story by Michael Higgins (with Mickey Ciokajlo) reported that, although Sessoms was found "qualified" for judicial office by the Chicago Bar Association, Sessoms was found "not qualified" or "not recommended" by eight of the ten bar associations that together form the Alliance of Bar Associations for Judicial Screening. Only the Cook County Bar Association and the Black Women Lawyers' Association of Greater Chicago recommended Sessoms' appointment.
Like the Chicago Bar Association, the Chicago Council of Lawyers typically releases a brief explanation of its judicial ratings. Of Mr. Sessoms, according to the Tribune article, the Council stated: "Mr. Sessoms has no jury trial or appellate law experience and, despite his many years in the public defender's office, has only tried misdemeanor cases.... While he is to be praised for his community service and commitment to diversity, he has not demonstrated the legal ability or temperament necessary to be a judge." The other Alliance members typically do not release explanations for their ratings, nor did they do so on this occasion.
The Supreme Court requested an explanation anyway. And they didn't get one.
Brian Mackey reported, in the September 4 issue of the Chicago Daily Law Bulletin (subscription required), "the Alliance wrote back, saying the executive board had twice met to discuss the court's request and decided not to provide any additional information." Sessoms had agreed to waive his confidentiality rights, but the Alliance responded, "that release does not cover sources, investigators' reports and the post-interview discussion."
According to Mackey's story, the court's first request for information came in a letter signed by Cynthia Y. Cobbs, director of the Administrative Office of the Illinois Courts. But when the Alliance decided not to accommodate the court's request, even after Sessoms waived his confidentiality rights, another letter was sent by the court, this one signed by all three of the Cook County justices, Charles E. Freeman, Thomas R. Fitzgerald and Anne M. Burke.
"Your refusal to honor our express request for the same, particularly on the basis cited, [affects] the credibility of the evaluation and, frankly, gives us pause. Even more importantly, however, it renders near impossible Mr. Sessoms ability to mount any credible appeal," the letter states.
The justices also said they "covet zealously" their "independent constitutional authority to act in the absence of bar associations' assistance and, certainly, in spite of their refusals."
The letter uses the past tense throughout, thanking the Alliance for its "past assistance," which the court has "historically... seen fit to invite."
Mackey's article also noted that Justices Burke, Fitzgerald and Freeman all attended Sessoms' swearing-in ceremony. That's an unusual honor -- and as strong a statement, in its way, as anything said in its letter: The Supreme Court will appoint judges that it deems fit.
In a September 4, 2007 post on Illinoize!, Ed Murnane of the Illinois Civil Justice League tries to turn this disagreement among friends into an attempted power grab by "plaintiffs' lawyers, the personal injury trial lawyers who frequently seem to be more interested in the size of the award than in justice."
In the post, Lawyer Groups Throw Weight Around In Judge Selection, Murnane lamented that, in Cook County, "judicial candidates are slated by the Cook County Democratic Central Committee. They may, or may not, have any qualifications beyond the endorsement of a local ward or township committeeman." But, he said, "[p]erhaps more disturbing than the dominant role of political parties in selecting judges is the intimidating influence of the lawyer groups, starting with the Illinois State Bar Association."
Yes, Murnane says, the "ISBA, heavily influenced if not controlled by plaintiffs' attorneys, weighs heavily in the judicial selection and election process.... [The] ISBA has wielded far more influence than the organization deserves and its biases have been obvious." But the appointment of Judge Sessoms is hardly an illustration of the ISBA's 'intimidating' presence in the judicial selection process.
Let's just take a breath here and consider a couple of points.
I have reviewed an appreciation I wrote in 1994 for the Chicago Daily Law Bulletin following my own unsuccessful primary run and find that I did not mention the ISBA at all.
It was the increasing number of candidates per vacancy and the budding interest of the ISBA in becoming involved in the evaluation of Cook County judicial races that led to the formation of the Alliance of Bar Associations for Judicial Screening. But the Alliance is a relatively new creation.
The Puerto Rican Bar Association of Illinois.
I submit that Mr. Murnane misunderstands the role that bar association evaluations play in the judicial election process. They are opinions offered by organizations interested in the improved operation of the court system. Every organization offering an opinion may have a different idea about what improved operations may mean.
Since bar association recommendations are only opinions, informed voters (or in the case of Judge Sessoms, the very informed appointers) are free to consider and disregard them. In this case, the Supreme Court offered the dissenting Alliance members an opportunity to explain why they disagreed with the court's assessment that Judge Sessoms was fit to serve. When the Alliance chose not to respond, the court went ahead with its appointment.
But that does not mean that bar association evaluations are worthless. If anything, the opinions of the CBA and the ISBA and the rest of the Alliance members should be more widely disseminated and more influential: These opinions regarding a candidate's merits (clearly labeled as such) are often the only thing real life primary voters have to go on -- except for the palm card on the way into the polling place. Although a precinct captain may disagree, it takes more than a palm card to make an informed voter.
Prospective candidates for the Circuit Court bench in the February 2008 primary are wondering: Who else is running?
Those who've been appointed to vacancies are presumably all running... but there will be dozens... maybe even a couple of hundred... others who will enter the lists. I've found a few already who've put up websites (one of these, John G. Mulroe, the subject of a September 1 post, is, I saw this week, already running ads on CTA buses).
So some candidates will advertise even before filing for judicial candidates opens. But most will not.
How, then, might a would-be candidate know who else is considering the race?
Well, would-be candidates who hope to raise and spend money on their campaign must file this form with the Illinois State Board of Elections. And when candidates file this form D-1 Statement of Organization, the information becomes available on line.
All the names below come from the "Latest Reports Filed" page on the State Board of Elections website as viewed on September 8, 2007. I deliberately skipped judicial candidates from other counties and I may have missed a Cook County candidate or two, but only because committees aren't required to specify the political office to which the candidate aspires. Many prospective candidates may have already established committees; the link provided here is only to the most recently filed. Also, candidates who have run previously might have kept their original campaign committees active with the State Board of Elections; no new D-1 forms would ordinarily be filed on behalf of such candidates. I've only included persons who have stated, in the title of their committees, that they are seeking judicial office.
A September 7 filing discloses that Gerald Patrick Cleary expects to be a Democratic candidate for Cook County Judge. According to the ARDC, Cleary, a lawyer since 1994, is an attorney with the Northern Trust Bank.
Terry McCarthy, whose campaign website I linked to in my August 28 post, filed his D-1 Statement on September 5.
A D-1 was filed on behalf of appointed Circuit Judge Lauretta Higgins Wolfson on September 4.
On August 31 a D-1 was filed for Nancy Hallihan Horodecki's campaing committee, Citizens for Nancy. According to the ARDC, Ms. Horodecki, who has only been admitted to practice in Illinois since 2004, is employed by the Teamsters.
A D-1 was also filed on behalf of John Garrett Maher on August 31. According to ARDC, Maher has been an attorney since 1993 and is employed as an Assistant State's Attorney.
Of course establishing or maintaining a committee provides no clue about the vacancy or vacancies for which a candidate may file. Nor does establishing or maintaining a committee guarantee that a person will actually become a candidate. But it is one tool which can be employed to get a 'handle' on who else is looking at a run.
You can decide for yourself whether one-time Coney Island performer Eduardo Arrocha (who performed under the stage name "Eak the Geek") is making a big transition or a little one.
It depends, I suppose, on how you view law school: If you view it as a "Bed of Nails," maybe the transition isn't too extreme.
That was Arrocha's act in the Coney Island Circus Sideshow (it is the Sideshow website from which the accompanying image is taken).
A September 4 story by Lauren Johnston in Newsday reports that Arrocha has enrolled at the Thomas M. Cooley Law School in Lansing, Michigan.
Even though his father is a corporate lawyer (in Mexico City) and his mother an academic, it is unlikely that Arrocha will pursue a career with a silk-stocking firm.
For one thing, according to Johnston's story, Arrocha is "tattooed from head-to-toe" with "stars and planets inked all over his face." (Your typical big-firm associate is unlikely to have any visible tattoos -- maybe a little tiny AmJur volume on the hip celebrating a class award, but that's about it.) For another, Arrocha's ambition takes him in a different direction: Arrocha told Newsday that he wants to be a "freak lawyer.... I hope to have a little office in New York and work with the alternative people ... all the so-called riff-raff, to give them legal representation that is not judgmental."
But, before Arrocha gets to hang out his shingle, he's had to learn how to tie a tie. There's apparently a dress code at Cooley.
White v. Chicago Transit Authority, the subject of the May 23, 2007 post, Reporting about §41 of the Transit Act -- what TV and the courts may have missed, is now reported at 373 Ill.App.3d 507, 869 N.E.2d 287. Timothy M. Gallagher and William E. Hoversen, Jr., represented Geneva White. The CTA was represented in that case by Darka Papushkewych, General Counsel; Ellen L. Partridge, Deputy General Counsel; and Rachel L. Kaplan, Chief Attorney. Gallagher and Hoversen have since advised that a Petition for Leave to Appeal to the Illinois Supreme Court has been filed in this case.
Cordts v. Chicago Tribune, the subject of the December 12, 2006 post, Let's talk about pleadings: Skipping straight to a §2-619 motion may waive a party's right to challenge the sufficiency of a complaint under §2-615, is now reported at 369 Ill.App.3d 601, 860 N.E.2d 444. John F. Winters, Jr. and Ruth M. Degnan of Winters, Enright, Salzetta & O'Brien, L.L.C. represented Michael Cordts. Appellees Chicago Tribune and Medeval Corporation were represented by John W. Powers and Karen M. Osgood of Seyfarth Shaw LLP and J. Laurence Kienlen of the Wheaton firm of Kienlen & Pietsch.
Standard Mutual Ins. Co. v. Marx, the subject of the September 11, 2006 post, Dead storage claim a non-starter in new case -- just like the motorcycle that burned down the storage facility, is now reported at 367 Ill.App.3d 512, 854 N.E.2d 710. John R. Keith, of the Keith Law Office of Springfield, represented Appellant M&S Rentals, Inc. while Robert Marc Chemers and Scott L. Howie of Pretzel & Stouffer, Chtd., represented Appellant Standard Mutual Insurance Company. Mark W. Rigazio of the Rigazio Law Office of Morris, Illinois, represented Appellee John D. Marx.
Pekin Ins. Co. v. Miller, the subject of the September 1, 2006 post, If a tree falls in the insurance policy, will it be covered? is now reported at 367 Ill.App.3d 263, 854 N.E.2d 693. Robert Marc Chemers and Scott L. Howie of Pretzel & Stouffer, Chtd. represented Pekin Insurance Co. Daniel E. Compton, of the Elgin firm of Brittain & Ketcham, P.C. represented the owners of the property on which the trees were wrongfully cut. Clay J. Mitchell, of Wauconda, represented Appellee Ken Miller d/b/a Miller Tree Service.
State Farm Fire and Casualty Co. v. Hooks, the subject of the July 10, 2006 post, It's all relative in new State Farm household exclusion case, is now reported at 366 Ill.App.3d 819, 853 N.E.2d 1. James M. Harman, of Harman, Fedick & O'Connor, Ltd. represented Sharon Connor Hooks. David E. Neumeister and Jennifer L. Medenwald, of Querrey & Harrow, Ltd. represented State Farm.
Instead of spending so much time looking over back issues of the Chicago Daily Law Bulletin and archived Supreme Court press releases in my search for information on appointments to judicial vacancies, I should have looked at the newspaper that was delivered to my office on Tuesday evening.
The September 4 edition of the Law Bulletin carried two stories about three Cook County judicial appointments.
Furmin D. Sessoms was appointed to fill the Fifth Subcircut vacancy created by the resignation of Judge Bernetta D. Bush. This is a link to the Supreme Court's August 30 order making that appointment.
The paper also reported that James A. Shapiro and Thaddeus L. Wilson were both sworn in as new Cook County Circuit Judges on Friday, August 31. Both received appointments that will expire December 1, 2008, the day on which judges elected in the coming election will take their oaths of office. Both men also, according to the Law Bulletin, plan to run in this coming election.
But to which vacancies were these men appointed?
I've looked again at the Supreme Court website and at the Westlaw archives of the Law Bulletin and I can't find the answers to this question.
On the other hand, a first-time candidate for judge will have to wait until the conclusion of the lengthy investigation process into the qualifications of all candidates in the primary -- a process that will conclude mere weeks before the primary date -- before he or she will know if any bar associations have found their qualifications adequate. For this election cycle, with the early primary date, though the Chicago Bar Association and the Alliance of Bar Associations can be counted on to render yeoman service, the gap between the conclusion of the bar review process and the election may be shorter than ever.
Candidates aspiring to the vacancies filled last week by Messrs. Shapiro and Wilson just suffered a major blow to their hopes.
Formal slating is underway today. It will be interesting to see if the newer appointees have a better claim on slating than those appointed earlier.
Appointed, yes, but will they be chosen?
Circuit court judges are elected in Illinois, but when vacancies occur the Illinois Supreme Court can fill those vacancies by temporary appointment.
The appointed judge can seek election to a full term at the next election. There was a time when a judge appointed to a Cook County vacancy would have a good chance of being slated by the Democratic party at that next election.
I don't believe that this is the rule any more -- but there is one way to find out: Slating is scheduled for this week. We will soon know who's been slated; we can compare that list with the list of those appointed.
I do not pretend that this is an exhaustive list; it is merely what I can personally verify after searching the referenced sources over several hours this past long weekend. Park Ridge attorney Russ Stewart mentioned in a recent column on his website that the Supreme Court had appointed Kenneth Fletcher to fill the vacancy created by Aurelia Pucinski's move from a 10th Subcircuit seat to a countywide one.
Stewart, himself a former judicial candidate, was not optimistic about Fletcher's or Snyder's chances of being slated. Stewart wrote, "Each Democratic committeeman has a rotating pick. This year, it’s Pat O’Connor’s (40th) and Gene Schulter’s (47th) turn. Fletcher, from the 41st Ward, and Snyder, from the 46th Ward, will both run, but, without party backing, they have no chance."
Practicing law with a song in your heart?
The ABA Journal Weekly Newsletter this week carries a link to this story by Martha Neil concerning an "unexpected Internet hit -- [a] law firm's unofficial theme song 'Everyone's a Winner at Nixon Peabody!'"
According to Neil's story, Nixon Peabody is a 700-attorney national law firm based in Rochester, New York.
Recently Nixon Peabody was named to Fortune Magazine's 2006 list of the 100 Best Companies to Work For (the link is to CNNMoney.com).
The firm seems to have celebrated its good fortune at some "internal event" at which, according to Neil's story, "law-firm marketers" debuted an unofficial theme song for the firm, "Everyone's a Winner at Nixon Peabody!"
And then some spoilsport went and posted it to YouTube -- and the video took off, getting, Neil says, 10,000 hits in 12 hours. The powers that be at the firm apparently turned as gray as their pinstripe suits and demanded that the song be taken down... a request with which YouTube complied.
However, the Above the Law blawg turned down the request, and seems to gone "wall to wall" covering the story. ABC News has picked up the story as well (including -- if you watch the video -- an interview with the proprietor of Above the Law). Snippets of the song remain available on YouTube as well.
I hope to continue writing here about the upcoming judicial primary (in Illinois generally and in Cook County in particular) in the weeks to come, so I suppose I should say, expressly, that I'm not running for any office this year.
This may be particularly necessary since some persons who will come across this site may remember that I have twice run for judge, once in the 10th Judicial Subcircuit of Cook County (in 1994) and then, two years later, for a countywide vacancy. In recounting these adventures, I like to emphasize that I did well with the bar associations (in terms of garnering positive ratings) -- because I certainly didn't do well with the actual voters.
I mention this merely to to explain my interest and to show that I identify with candidates now looking to "get the word out" about their own judicial campaigns.
Another day, another website. John G. Mulroe is a candidate for judge in Cook County's 10th Judicial Subcircuit.
This is the third link I've run across for a Cook County judicial candidate since I started looking earlier this week.
Mulroe's new site stresses his experience as a hearing officer for the City of Chicago and the Chicago Park District. He also has served as an arbitrator in the Cook County court-annexed mandatory arbitration program. He's also a C.P.A.
A past president of the St. Juliana Parish School Board, according to his site, Mulroe has also served as President of the Edison Park Community Council. He and his wife, Margaret, have four children.


The International Traffic in Arms Regulations (ITAR) is a United States regulation to control the manufacture, sale and distribution of defense and military related technologies. CVG Strategy has compiled this ITAR Glossary to help our customers understand the terminology and commonly used phrases used in implementing and using the ITAR.
Some products fall under ITAR regulations, depending on how they are classified. Using the ITAR Glossary when classifying articles will help the reader use the United States Munitions List (USML). Proper classification as ITAR Controlled may dictate that certain defense and military related technologies may only be sold or exported if authorization from the Department of State is received. The goal of the legislation is to control access to specific types of technology and their associated data.
A new control series added to the Commerce Control List (CCL) that controls most items formerly on the USML that have moved to the CCL, and consolidates the thirteen existing Wassenaar Arrangement Munitions List entries.
Associated articles for any component, equipment, system, or end-item, and which are not necessary for its operation, but which enhance its usefulness or effectiveness. Source: §120.45(c).
Applicant means any person who applies to the Directorate of Defense Trade Controls for any license or approval required under this subchapter for the export of defense articles or defense services valued in an amount of $500,000 or more which are being sold commercially to or for the use of the armed forces of a foreign country or international organization. This term also includes a person to whom the required license or approval has been given. [71 FR 20554, Apr. 21, 2006]. Source: §130.2, Applicant.
Armed forces means the army, navy, marine, air force, or coast guard, as well as the national guard and national police, of a foreign country. This term also includes any military unit or military personnel organized under or assigned to an international organization. Source: §130.3, Armed Forces.
A “catch-all” control is one that does not refer to specific types of parts, components, accessories, or attachments, but rather controls unspecified parts, components, accessories, or attachments only if they were specially designed for an enumerated item. Source: §120.41, Note to paragraph (b).
Commerce Control List. A key in determining whether an export license is needed from the Department of Commerce is knowing whether the item you intend to export has a specific Export Control Classification Number (ECCN).
Congressional Notification. The Arms Export Control Act requires that a certification be provided to the Congress prior to the granting of any license or other approval for transactions involving exports of any defense articles and defense services and for exports of major defense equipment, as defined in §123.15.
Any article, material, or supply, except technology/technology data or software. Source: §120.41, Note to paragraphs (a) and (b).
A procedure used with the U.S. Government if doubt exists as to whether an article or service is covered by the U.S. Munitions List. It may also be used for consideration of a redesignation of an article or service currently covered by the USML. Source: §120.4, Commodity Jurisdiction.
An item that is useful only when used in conjunction with an end-item. A major component includes any assembled element that forms a portion of an end-item without which the end-item is inoperable. A minor component includes any assembled element of a major component. Source: sect;120.45(b).
Any item or technical data designated in §121.1 of [the ITAR]. This term includes technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items designated in §121.1 of [the ITAR]. It also includes forgings, castings, and other unfinished products, such as extrusions and machined bodies, that have reached a stage in manufacturing where they are clearly identifiable by mechanical properties, material composition, geometry, or function as defense articles. It does not include basic marketing information on function or purpose or general system descriptions. Source: §120.6, Defense Article.
The furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles; the furnishing to foreign persons of any technical data controlled under [the ITAR]; whether in the United States or abroad; or military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice. Source: §120.9, Defense Services.
Related to all stages prior to serial production, such as: design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts. Source: §120.41, Note 2 to paragraph (b)(3).
Export Control Classification Number. The ECCN is an alpha-numeric code, e.g., 3A001, that describes the item and indicates licensing requirements. All ECCNs are listed in the Commerce Control List (CCL) (Supplement No. 1 to Part 774 of the EAR) which is available on the Government Printing Office website. The CCL is divided into ten broad categories, and each category is further subdivided into five product groups.
A system, equipment, or an assembled article ready for its intended use. Only ammunition or fuel or other energy source is required to place it in an operating state. Source: §120.45(a).
Refers to any article on the USML or Commerce Control List and not in a “catch-all” control. A “catch-all” control is one that does not refer to specific types of parts, components, accessories, or attachments, but rather controls unspecified parts, components, accessories, or attachments only if they were specially designed for an enumerated item. Source: §120.41, Note to paragraph (b).
A combination of parts, components, accessories, attachments, firmware, or software that operate together to perform a function of, as, or for an end-item or system. Equipment may be a subset of an end-item based on the characteristics of the equipment. Equipment that meets the definition of an end-item is an end-item. Equipment that does not meet the definition of an end-item is a component, accessory, attachment, firmware, or software. Source: §120.45(h).
With respect to a commodity, “equivalent” means its form has been modified solely for fit purposes. Source: §120.41, Note 5 to paragraph (b)(3).
Fee or commission means, except as provided in paragraph (b) of this section, any loan, gift, donation or other payment of $1,000 or more made, or offered or agreed to be made directly or indirectly, whether in cash or in kind, and whether or not pursuant to a written contract, which is: a.) To or at the direction of any person, irrespective of nationality, whether or not employed by or affiliated with an applicant, a supplier or a vendor; and b.) For the solicitation or promotion or otherwise to secure the conclusion of a sale of defense articles or defense services to or for the use of the armed forces of a foreign country or international organization. The term fee or commission does not include: a.) A political contribution or a payment excluded by §130.6 from the definition of political contribution; b.) A normal salary (excluding contingent compensation) established at an annual rate and paid to a regular employee of an applicant, supplier or vendor; c.) General advertising or promotional expenses not directed to any particular sale or purchaser; or d.) Payments made, or offered or agreed to be made, solely for the purchase by an applicant, supplier or vendor of specific goods or technical, operational or advisory services, which payments are not disproportionate in amount with the value of the specific goods or services actually furnished. [58 FR 39323, July 22, 1993, as amended at 71 FR 20554, Apr. 21, 2006]. Source: § 130.5, Fee or Commission.
Firmware and any related unique support tools (such as computers, linkers, editors, test case generators, diagnostic checkers, library of functions, and system test diagnostics) directly related to equipment or systems covered under any category of the U.S. Munitions List are considered as part of the end-item or component. Firmware includes but is not limited to circuits into which software has been programmed. Source: §120.45(e).
The fit of a commodity is defined by its ability to physically interface or connect with or become an integral part of another commodity. For software, the fit is defined by its ability to interface or connect with a defense article. Source: §120.41, Note 4 to paragraph (b)(3)Also see Note 4 to §120.4.
The form of a commodity is defined by its configuration (including the geometrically measured configuration), material, and material properties that uniquely characterize it. For software, the form means the design, logic flow, and algorithms. Source: §120.41, Note 4 to paragraph (b)(3). Also see Note 4 to §120.4.
The action or actions a commodity is designed to perform. For software, function refers to the action or actions the software performs directly related to a defense article or as a standalone application. Source: §120.41, Note 4 to paragraph (b)(3).
The ITAR Glossary is based on definitions published by the US Government’s DDTC and the ITAR Glossary is maintained here by CVG Strategy for its customers.
Knowledge includes not only the positive knowledge a circumstance exists or is substantially certain to occur, but also an awareness of a high probability of its existence or future occurrence. Such awareness is inferred from evidence of the conscious disregard of facts known to a person and is also inferred from a person’s willful avoidance of facts. Source: §120.41, Note 2 to paragraphs (b)(4) and (5).
Major Defense Equipment. Pursuant to section 47(6) of the Arms Export Control Act (22 U.S.C. 2794(6) note), major defense equipment means any item of significant military equipment (as defined in §120.7) on the U.S. Munitions List having a nonrecurring research and development cost of more than $50,000,000 or a total production cost of more than $200,000,000, as defined in §120.8.
Missile Technology Control Regime is an informal political understanding among states that seek to limit the proliferation of missiles and missile technology. The regime was initially formed in 1987 by the G-7 industrialized countries (Canada, France, Germany, Italy, Japan, the UK, and the United States). It seeks to limit the risks of proliferation of weapons of mass destruction (WMD) by controlling exports of goods and technologies that could make a contribution to delivery systems (other than manned aircraft) for such weapons. It now consists of 35 partner nations including: Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, India, Ireland, Italy, Japan, Luxemburg, Netherlands, New Zealand, Norway, Poland, Portugal, Republic of Korea, Russian Federation, South Africa, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom, and the United States of America.
Any single unassembled element of a major or a minor component, accessory, or attachment which is not normally subject to disassembly without the destruction or the impairment of designed use. Source: §120.45(d).
The measure of a commodity’s effectiveness to perform a designated function in a given environment (e.g., measured in terms of speed, durability, reliability, pressure, accuracy, efficiency). For software, performance capability means the measure of the software’s effectiveness to perform a designated function. Source: §120.41, Note 4 to paragraph (b)(3).
Political contribution means any loan, gift, donation or other payment of $1,000 or more made, or offered or agreed to be made, directly or indirectly, whether in cash or in kind, which is: a.) To or for the benefit of, or at the direction of, any foreign candidate, committee, political party, political faction, or government or governmental subdivision, or any individual elected, appointed or otherwise designated as an employee or officer thereof; and b.) For the solicitation or promotion or otherwise to secure the conclusion of a sale of defense articles or defense services to or for the use of the armed forces of a foreign country or international organization. Taxes, customs duties, license fees, and other charges required to be paid by applicable law or regulation are not regarded as political contributions. Source: § 130.6, Political contribution.
All production stages, such as product engineering, manufacture, integration, assembly (mounting), inspection, testing, and quality assurance. This includes “serial production” where commodities have passed production readiness testing (i.e., an approved, standardized design ready for large scale production) and have been or are being produced on an assembly line for multiple commodities using the approved, standardized design. Source: §120.41, Note 1 to paragraph (b)(3).
Includes but is not limited to the system functional design, logic flow, algorithms, application programs, operating systems and support software for design, implementation, test, operation, diagnosis and repair. A person who intends to export only software should, unless it is specifically enumerated in §121.1 (e.g., Category XIII(b)), apply for a technical data license pursuant to §125. Source: §120.45(f).
Commodities or software that either as a result of development, have properties peculiarly responsible for achieving or exceeding the controlled performance levels, characteristics, or functions described in a USML paragraph; or are parts, components, accessories, attachments, or software for use in or with defense articles and are not excluded for one or more of the reasons listed in §120.41(b). Source: §120.41, Specially Designed.
A term used in the EAR to describe those commodities, software, technology, and activities over which the Bureau of Industry and Security (BIS) exercises regulatory jurisdiction under the EAR (see §734.2(a) of the EAR). Source: BIS Specially Designed Decision Tool, Key Terms List.
Section 38 of the Arms Export Control Act (22 U.S.C. 2778), as amended, authorizes the President to control the export and import of defense articles and defense services. The statutory authority of the President to promulgate regulations with respect to exports of defense articles and defense services was delegated to the Secretary of State by Executive Order 11958, as amended. [The ITAR] implements that authority. Source: §120.1, General authorities, receipt of licenses, and ineligibility.
Supplier means any person who enters into a contract with the Department of Defense for the sale of defense articles or defense services valued in an amount of $500,000 or more under Section 22 of the Arms Export Control Act (22 U.S.C. 2762). Source: §130.7, Supplier.
A combination of parts, components, accessories, attachments, firmware, software, equipment, or end-items that operate together to perform a function. Source: §120.45(g).
Information, other than software as defined in §120.10(a)(4) which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles (this includes information in the form of blueprints, drawings, photographs, plans, instructions or documentation); classified information relating to defense articles and defense services on the USML and 600-series items controlled by the CCL; information covered by an invention secrecy order; or software as defined in §120.45(f) directly related to defense articles. Source: §120.10, Technical Data.
United States Munitions List . The Arms Export Control Act (22 USC 2778(a) and 2794(7)) provides that the President shall designate the articles and services deemed to be defense articles and defense services for purposes of import or export controls. The items so designated constitute the USML and are specified in §121.1 of the ITAR. Such designations are made by the Department of State (within the Directorate of Defense Trade Controls) with the concurrence of the Department of Defense. For a determination on whether a particular item is included on the USML, see §120.4(a). Source: §120.2, Designation of Defense Articles and Defense Services.
This ITAR Glossary will be updated periodically as new definitions are published by the DDTC. Customers are encouraged to periodically check back to this ITAR Glossary for updates and new sections to help them with their ITAR Program.


Final regulations have been issued by the IRS on the penalty found at IRC §6707A for failure to disclose a reportable transaction (TD 9853). These regulations clarify the application of these rules due to changes made in the Small Business Jobs Act of 2010. That Act modified the calculation of the penalty, making it somewhat less draconian than the fixed dollar penalties found in the original provision.
IRC §6707A imposes penalties for failing to report certain transactions that are either treated as reportable transactions as defined by Reg. §1.6011-4 or are treated as listed transactions due to being identified by IRS as a tax avoidance transaction for purposes of IRC §6011.
Such transactions are reported on Form 8886, Reportable Transaction Disclosure Statement which must be completed for each year that the affected transaction has an impact on the return.
The penalty for failing to disclose participation in a listed transaction, regardless of whether any tax deficiency is eventually found to result from the transaction, is “75 percent of the decrease in tax shown on the return as a result of such transaction (or which would have resulted from such transaction if such transaction were respected for Federal tax purposes).” A minimum penalty of $5,000 for individuals and $10,000 for any other type of taxpayer shall be imposed even if 75% of the reduction in tax is less than that amount.
$10,000 for an individual and $50,000 for other entities for any other reportable transaction.
(vi) Example 6. Taxpayer X, a natural person, files X’s 2019 return reflecting participation in a reportable transaction that is not a listed transaction, but fails to disclose the transaction as required by the regulations under section 6011. The decrease in tax with respect to X’s 2019 return as a result of participation in the reportable transaction is $20,000. X files an amended 2019 return to include a net operating loss carried forward from a prior year, which X inadvertently failed to include when filing the original 2019 return. The amended return reflects participation in the same reportable transaction, but X again fails to disclose the transaction as required by the regulations under section 6011. The decrease in tax with respect to the amended 2019 return as a result of participation in the transaction is also $20,000. X is subject to two separate 6707A penalties: one for the failure to disclose the reportable transaction with respect to the tax benefits from the reportable transaction reflected on the original 2019 return and one for the failure to disclose the reportable transaction with respect to the tax benefits from the reportable transaction reflected on the amended 2019 return. Seventy-five percent of the $20,000 decrease in tax shown on the original 2019 return is $15,000 and on the amended 2019 return is another $15,000. However, because X is a natural person, the amount of the penalty for failure to disclose is limited to the maximum amount of $10,000 under §301.6707A-1(a) and section 6707A(b)(2)(B). Accordingly, the amount of the section 6707A penalty for the 2019 original return is $10,000 and the amount of the section 6707A penalty for the 2019 amended return is also $10,000, for a total penalty of $20,000.
(vii) Example 7. Taxpayer X, a natural person, timely files X’s 2019 return on April 15, 2020, reflecting participation in a transaction that was not identified as a reportable transaction when X filed the return, the only year X participated in the transaction. In early 2021, the IRS identifies the transaction as a listed transaction. X fails to disclose the listed transaction as required by the regulations under section 6011. In late 2021, X files an amended 2019 income tax return to claim deductions that had been omitted from the originally filed 2019 return. The amended 2019 return reflects X’s participation in the listed transaction. X does not disclose the listed transaction when filing the amended 2019 return. The decrease in tax resulting from X’s participation in the transaction is $100,000 with respect to the original 2019 return and $80,000 with respect to the 2019 amended return. Pursuant to §1.6011-4(e)(2)(i) of this chapter, X was required to file a disclosure statement reflecting X’s participation in the listed transaction if the period of limitations on assessment of tax remained open for any taxable year in which the taxpayer participated in the listed transaction. When the transaction at issue became listed, the period of limitations on assessment on X’s 2019 tax year was open. Pursuant to §1.6011- 4(e)(1) of this chapter, X was also required to disclose participation in the transaction when the 2019 amended return was filed because the transaction was a listed transaction at that time. X is subject to two penalties under section 6707A: one for the failure to disclose participation in a listed transaction reflected on X’s original 2019 return within 90 calendar days of the date the transaction became a listed transaction as required by §1.6011-4(e)(2)(i) of this chapter and another for the failure to disclose participation in the same listed transaction reflected on the 2019 amended return. Seventy-five percent of this decrease in tax with respect to the original 2019 return is $75,000 (75 percent of $100,000) and with respect to the 2019 amended return is $60,000 (75 percent of $80,000). Pursuant to paragraph (d)(1)(iv) of this section, because X is subject to two separate penalties, the maximum penalty amount of $100,000 under §301.6707A-1(a) and section 6707A(b)(2)(A) applies separately to each penalty and does not operate to reduce the amount of the X’s 6707A penalties.
(x) Example 10. In tax year 2020, Taxpayer X, a natural person, participated in a listed transaction that resulted in a $50,000 deduction. X also has a net operating loss carryover of $150,000 from 2019. X uses the deduction of $50,000 and a portion of the net operating loss carryover resulting in zero tax liability for 2020. X carries over the remaining net operating loss to tax year 2021. X’s gross income for 2021 is $250,000, but as a result of the net operating loss carryover, X reports reduced adjusted gross income of $150,000. Pursuant to §1.6011-4 of this chapter, X is required to disclose participation in the listed transaction for both 2020 and 2021, but X fails to make the required disclosures and is subject to the section 6707A penalty for each failure. The decrease in tax on the 2020 return that results from the reportable transaction is zero. Because X has $150,000 of a net operating loss carryover not attributable to the reportable transaction, X’s tax without the benefits of the reportable transaction is the same as the tax shown on the 2020 return as filed. Because X is a natural person, the minimum penalty of $5,000 under §301.6707A-1(a) and section 6707A(b)(3) will apply for the failure to disclose the listed transaction with the 2020 return. The decrease in tax on the 2021 return is the difference between the tax shown on the return as filed and the tax that would be shown if X had only $50,000 of net operating loss to carry over to 2021 (i.e., if X had not offset $50,000 of its 2020 gross income with the deduction resulting from the reportable transaction and thus had used $100,000 of its net operating loss carryover in 2020), including any changes to the amount of tax that are only indirectly connected with the listed transaction. The amount of the penalty with respect to the disclosure relating to 2021 will be 75 percent of this decrease in tax, subject to the minimum and maximum penalty amount limitations.
The final regulations define a return for purposes of §6707A as “an original return, amended return, or application for tentative refund” except in cases where the regulation otherwise provides.
(2) Any other tax that results from participation in the reportable transaction but was not reported on the taxpayer’s return.
The amount of tax that would have been shown on the return if it did not reflect the taxpayer’s participation in the reportable transaction includes adjustments that result mechanically from backing out the reportable transaction, such as tax items affected by an increase in adjusted gross income resulting from not participating in the transaction. The calculation of the penalty is unaffected by whether a taxpayer’s tax liability is ultimately settled with the IRS for a different amount or whether the taxpayer subsequently reports a different amount of tax on an amended return, because these amounts do not enter into the calculation of the decrease in tax shown on the return (or returns) to which the penalty relates.
(i) Example 1. Taxpayer X, a natural person, participated in a listed transaction involving a Roth IRA and filed a return reflecting participation in the transaction. X failed to disclose participation in the listed transaction as required by the regulations under section 6011. As a result of the transaction, X was liable under section 4973 for a $10,000 excise tax for excess contributions to X’s Roth IRA. On X’s return reflecting participation in the listed transaction, X correctly reported $25,000 of income tax, none of which was attributable to the listed transaction, but failed to report the excise tax. If X had not participated in the listed transaction, the excise tax under section 4973 would not have applied and X’s income tax would have remained $25,000. There would, therefore, be no difference between the tax on the return as filed and the tax on the return if it did not reflect participation in the transaction. The excise tax, however, is another tax that resulted from participation in the transaction but was not reported on X’s return, as described in paragraph (d)(1)(i)(B) of this section. Therefore, under paragraph (d)(1) of this section, the decrease in tax resulting from the listed transaction is $10,000. This amount is determined by adding zero (the excess of the amount of tax that would have been shown on X’s return if the return did not reflect X’s participation in the transaction over the tax X actually reported on the return reflecting X’s participation in the transaction) and $10,000 (the amount of excise tax that resulted from participation in the transaction but was not reported on the return). The amount of the penalty under section 6707A is $7,500, which amount is 75 percent of the $10,000 decrease in tax.
(iii) Example 3. For the 2018 tax year, Taxpayer X, a natural person, failed to disclose participation in a reportable transaction that is not a listed transaction and, therefore, is subject to a penalty under section 6707A. After offsetting gross income with the losses generated in the reportable transaction, X’s return reported adjusted gross income of $100,000. The return also reported $12,000 of medical expenses, $4,500 of which were deductible after applying the 7.5 percent floor in section 213(a) and (f). If X’s return had not reflected participation in the reportable transaction, X’s adjusted gross income would have been $140,000 and the deductible medical expenses would be limited to $1,500 ($3,000 less than the deductible amount claimed). Under paragraph (d)(1) of this section, the decrease in tax shown on X’s return as a result of X’s participation in the reportable transaction takes into account both the tax on the additional $40,000 in adjusted gross income had X not participated in the reportable transaction and the tax on the $3,000 adjustment to X’s deductible medical expenses caused by the increase in adjusted gross income.
(iv) Example 4. Taxpayer X, a natural person, timely filed X’s 2019 return and reported income tax of $40,000. X did not participate in a reportable transaction in 2019. X participated in a listed transaction in 2020, but failed to file a complete and proper disclosure statement with X’s 2020 return as required by the regulations under section 6011. As filed, the 2020 return reports that X owes no tax and has a loss of $10,000. If the tax consequences of the listed transaction were not reflected on the 2020 return, the return would show income tax of $15,000 and no loss. X files an amended return for the 2019 tax year on which the only amendment is to carry back the $10,000 loss reported on the 2020 tax return to the 2019 tax year. The loss carryback reduces X’s tax liability for 2019 by $3,000 to $37,000. X fails to file a complete and proper disclosure statement with the 2019 amended return as required by the regulations under section 6011. Two penalties under section 6707A apply: one for X’s failure to disclose participation in a listed transaction reflected on the 2020 return and another for the failure to disclose participation in the same listed transaction reflected on the 2019 amended return. Under paragraph (d)(1) of this section, the decrease in tax on the 2020 return resulting from the listed transaction is $15,000, which is the excess of the amount of tax that would have been shown on X’s 2020 return if that return did not reflect X’s participation in the listed transaction over the tax X actually reported on the 2020 return. The amount of the section 6707A penalty with respect to the 2020 return is $11,250, which amount is 75 percent of the decrease in tax. Under paragraph (d)(1) of this section, the decrease in tax on the 2019 amended return that results from the listed transaction is $3,000. This amount is computed by determining the excess of the amount of tax that would have been shown on X’s 2019 amended return if that return did not reflect X’s participation in the listed transaction over the tax X actually reported on the 2019 amended return reflecting the loss carryback resulting from X’s participation in the listed transaction in 2020. See paragraph (c) of this section. However, because X is a natural person, and because 75 percent of the $3,000 decrease in tax is less than $5,000, which is the minimum penalty under paragraph (a) of this section and section 6707A(b)(3), the section 6707A penalty with respect to the failure to disclose the listed transaction with respect to the 2019 amended return is $5,000. Accordingly, X is subject to a $11,250 section 6707A penalty for failure to disclose participation in a listed transaction reflected on the 2020 return and a $5,000 section 6707A penalty for failure to disclose participation in a listed transaction reflected on the 2019 amended return.
(ix) Example 9. In tax year 2019, Taxpayer X participated in a listed transaction that resulted in a $150,000 deduction. X’s gross income for 2019 before the listed transaction deduction is $100,000. X uses $100,000 of the deduction resulting in zero tax liability for 2019. X carried over to tax year 2020 the remaining $50,000 net operating loss that was not used in 2019. X’s gross income for tax year 2020 is $200,000 but as a result of the $50,000 net operating loss carryover, X reports $150,000 adjusted gross income. Pursuant to §1.6011- 4 of this chapter, X is required to disclose participation in the listed transaction for both 2019 and 2020, but X fails to make the required disclosures and is therefore subject to the section 6707A penalty for each failure. The decrease in tax on the 2019 return is the amount of tax on $100,000 because that is the difference between the amount of tax that would have been shown on the return if it did not reflect participation in the listed transaction and the tax actually reported. No other tax resulted from X’s participation in the listed transaction. The amount of the penalty with respect to X’s failure to disclose with respect to 2019 will be 75 percent of the decrease in tax. The decrease in tax on the 2020 return is the difference between the tax shown on the return as filed and the tax that would be shown if the $50,000 net operating loss was not used, including any changes to the amount of tax that are only indirectly connected with the listed transaction. The amount of the penalty with respect to X’s failure to disclose with respect to 2020 will be 75 percent of the decrease in tax, subject to the minimum and maximum penalty amount limitations.
The IRS did grant some relief from filing statements for prior returns when a transaction is subsequently identified as a transaction of interest (a listed transaction) after returns affected by the transaction have been filed. Reg. §1.6011-4(a) generally requires taxpayer to file a report within 90 days of the IRS identification of a transaction as a listed transaction for any previously filed return impacted by that transaction.
In the preamble the IRS noted that while the law does not impose a requirement that affected returns must be open for assessment for this rule to apply, the IRS in these regulations have limited the need to search for potentially impacted returns only to those whose statute for assessing tax remained open (apparently tested at the date the IRS announces that the transaction is a listed transaction, though the regulation could be read instead to have the test apply at the 90th day following the publication of that notice).
(v) Example 5. Taxpayer X, a corporation, timely files its 2019, 2020, and 2021 returns, each of which reflects participation in the same transaction. In 2023, the transaction becomes a listed transaction. When the transaction at issue became listed, the periods of limitations on assessment on X’s 2020 and 2021 tax year were open, but the period of limitations on assessment on X’s 2019 tax year was closed. Pursuant to §1.6011-4(a) and (e)(2)(i) of this chapter, X is required to file a single disclosure statement reflecting its participation in the listed transaction 90 calendar days after the date on which the transaction becomes a listed transaction. X failed to file a disclosure statement as required. Pursuant to paragraph (d)(1)(ii) of this section, the section 6707A penalty is computed by aggregating the decrease in tax shown on the 2020 return and the decrease in tax shown on the 2021 return. Because the period of limitations on assessment for X’s 2019 tax year was closed at the time the transaction became listed, the decrease in tax shown on the 2019 return as a result of X’s participation in the listed transaction is not taken into account in computing the amount of the penalty. The decreases in tax shown on the returns as a result of X’s participation in the transaction are $265,000 in tax year 2020 and $7,000 in tax year 2021. Under paragraph (d)(1) of this section, the total decrease in tax shown is computed by adding the decrease in tax for 2020 and the decrease in tax for 2021, which is $272,000. Seventy-five percent of that amount is $204,000. Because X is a corporation, the maximum penalty amount is $200,000 under paragraph (a) of this section and section 6707A(b)(2)(A). Accordingly, X is subject to a section 6707A penalty of $200,000, rather than $204,000.
In the case of a penalty imposed under section 6707A(e) for failure to disclose liability for certain penalties in reports to the Securities and Exchange Commission (SEC), the amount of the penalty will be determined under section 6707A(b) and this paragraph (d), regardless of whether the penalty that the taxpayer failed to disclose is imposed under section 6707A, 6662A, or 6662(h).
(xi) Example 11. Taxpayer X, a public corporation required to file periodic reports under section 13 or 15(d) of the Securities Exchange Act of 1934, timely filed its 2019 return reflecting tax benefits from a reportable transaction that is not a listed transaction and properly disclosed the transaction in accordance with the regulations under section 6011. In 2023, as a result of an examination of X’s 2019 return, the IRS imposes a penalty under section 6662A with respect to the reportable transaction. The decrease in tax for purposes of paragraph (d)(1) of this section is $190,000. As a person who is required to file periodic reports under section 13 or 15(d) of the Securities Exchange Act of 1934, X is required, pursuant to section 6707A(e), to disclose the penalty imposed under section 6662A to the Securities and Exchange Commission in 2023, which X failed to do. X’s failure to disclose the section 6662A penalty is treated as a failure to disclose to which section 6707A(b) applies. Thus, X is subject to a penalty under section 6707A(e), which equals 75 percent of the decrease in tax resulting from the transaction. The decrease in tax resulting from the reportable transaction was $190,000, 75 percent of which is $142,500. Because X is a corporation and the transaction is not a listed transaction, the amount of the penalty is limited to $50,000 under paragraph (a) of this section and section 6707A(b)(2)(B). Therefore, rather than $142,500, X is subject to a $50,000 section 6707A penalty for failure to disclose the section 6662A penalty to the SEC.
(viii) Example 8. Under §1.6011-4 of this chapter, Partnership M is required to attach a disclosure statement to its Form 1065, U.S. Return of Partnership Income, for the 2020 taxable year. M fails to do so and is, therefore, subject to a penalty under section 6707A. No tax is required to be shown on M’s Form 1065. Pursuant to §301.6707A-1(d)(2), M is subject to the minimum section 6707A penalty of $10,000. The partners of Partnership M may have separate disclosure obligations as required by the regulations under section 6011 and would be subject to separate section 6707A penalties if they fail to comply with the disclosure requirements.


text:
8.15.050 Recreational, utility and motor vehicles.
8.15.080 Disabled persons’ parking spaces.
8.15.085 Fire lane maintenance/blocking fire lane prohibited.
* For nuisance regulations regarding animals, see MTMC Title 6, Animals.
The purpose and intent of this chapter is to create and maintain a safe and healthy living environment for the citizens of Mountlake Terrace, by identifying and reducing the precipitators of injury, illness, devaluation of property, and the incidence of crime. (Ord. 2292 § 1, 2001).
A Police Officer or designated employee of the City of Mountlake Terrace may enforce the provisions of this chapter. (Ord. 2292 § 1, 2001).
A. “Auxiliary parking” or “auxiliary driveway” means any area excluding the required minimum improved surfaces for parking or driveways that provides for the parking or driving of vehicles per MTMC 19.125.070.
4. Is hazardous or a nuisance due to damage or broken glass or exposure to the elements.
C. “Improved surface” means an area that is covered by a permanent hard surface, including concrete, asphalt, or pavers in accordance with the engineering standards of the Mountlake Terrace Community Development Department, or any combination of materials with pervious features, such as ribbon driveways, that has been permitted by that department as a functionally equivalent hard surface per MTMC 19.125.070.
D. “Inoperative vehicle” is defined as any vehicle or recreational vehicle that may not be operated or towed behind a vehicle on a public roadway due to the condition of the vehicle or the status of the ownership, registration, or license of the vehicle.
E. “Maintained surface” means a surface that consists of gravel contained in a defined area of the property without spilling into the street, sidewalk, or adjoining property and that has no more than 50 percent of its surface area comprised of exposed soil or plant material, unless the surface has otherwise been permitted by the Community Development Department as an improved surface.
F. “Motor vehicle” means any car, truck, van or motorcycle used for the transportation of passengers, but not including recreational vehicles or utility vehicles.
G. Nuisances. A public nuisance shall be defined as a thing, act, omission, condition or use of private property or adjacent public property improved or unimproved, which is created, maintained or allowed to exist that annoys, offends, injures, endangers, or obstructs the comfort, repose, health, or safety of others.
H. “Recreational or utility vehicle” means a vehicular-type unit primarily designed for recreation, camping, travel, or hauling, which has its own motor power or is typically mounted or towed by another vehicle, including but not limited to: motor homes, campers, travel trailers, boats over 14 feet in length, horse trailers, and utility trailers.
I. “Unimproved surface” means a soil and/or planted surface. (Ord. 2452 § 1, 2007; Ord. 2415 § 2, 2006; Ord. 2292 § 1, 2001).
6. Woodpiles that are not properly stacked or accumulations of wood debris, such as branches, that could become a fire hazard or harbor rodents.
B. Buildings, Structures, Fences. Buildings, structures, fences or other constructed objects that are decayed, damaged, or in disrepair to the extent that they pose a threat of collapse, structural failure, or falling onto public property or public right-of-way.
4. Accumulations of dirt or debris not removed from a public sidewalk.
D. Unauthorized Signs. All unauthorized signs, signals, markings or devices that are displayed to resemble an official traffic control device.
E. Building and Construction Materials. Accumulations, stacks, or piles of building or construction materials not associated with a current in-progress project including metal, wood, wire, electrical or plumbing materials in disarray or exposed to the elements on the property.
4. Insect or Vermin Attractions. Creating or maintaining accumulations of matter, including foodstuffs, that harbor or are an attraction for the infestation of insects or vermin or failing to eliminate such infestations.
2. The polluting of any waterway, wells, or body of water.
3. Compost not kept in a manner to prevent it from attracting infestations of insects or emitting foul odors.
2. All accessible refrigeration appliances not having the doors secured or removed, or any enclosure that can entrap humans or animals.
I. Debris and Trash. Accumulations of broken or neglected items, litter, salvage materials, and junk not in an approved enclosed structure, in the front, back, or side yards of the property.
J. Holes, Pits, and Excavations. All uncovered holes, pits, or excavations not marked or guarded.
K. Machinery and Equipment. Broken, inoperable accumulations of, or parts of, machinery or equipment not in an approved enclosed structure, in the front, back, or side yards of the property.
L. Attractive Nuisances. Any accessible attractive nuisance to children including, but not limited to, unattended machinery or equipment, unsecured abandoned or vacant buildings, open and unattended vehicle trunks, or other unguarded conditions or situations that could injure or trap a child.
M. Obstructions within Sight Area Triangles. Any violation set forth in MTMC 19.120.290. (Ord. 2728 § 1, 2018; Ord. 2415 § 3, 2006; Ord. 2389 § 1, 2005; Ord. 2292 § 1, 2001).
A. Motor vehicle repair, sales, storage or otherwise operating a vehicle-oriented business is prohibited unless all zoning and licensing requirements have been met and conditions maintained.
1. All motor vehicles that are junk, inoperable or unused for 30 days or more shall be stored inside a fully enclosed structure.
2. Motor vehicles belonging to persons other than a resident may not be stored on a property outside a fully enclosed structure.
3. All motor vehicles shall be parked on an improved surface anywhere on a property, or on a maintained surface per MTMC 19.125.070. No more than two motor vehicles may be parked in the rear yard of a residence unless contained in a legal and fully enclosed structure.
4. Recreational or utility vehicles stored in a front yard shall be parked on an improved surface, or on a maintained surface per MTMC 19.125.070.
5. Recreational vehicles shall not extend onto public property or public right-of-way, or obstruct the view of traffic or traffic control devices.
6. No more than two recreational vehicles may be parked anywhere on a property.
c. On an improved surface.
8. Recreational or utility vehicles parked outside of a building shall be maintained in a clean, stable and well-kept state, which means that they shall have none of the following: a broken window, body damage or rust affecting more than 10 percent of the vehicle’s exterior surface excluding the vehicle’s undercarriage or other appearance of substantial disrepair or neglect.
9. Recreational or utility vehicles equipped with liquefied petroleum gas containers shall meet the standards of the Interstate Commerce Commission. Valves or gas containers shall be closed when the vehicle is parked or stored. In the event of leakage, immediate corrective action must be taken.
10. Any vehicle, including a recreational or utility vehicle, parked in a side yard shall be at least three feet away from the structure, and shall allow for at least five feet of clear access on one side or the other between the structure and the property line.
C. All stored vehicles must be maintained in a clean and safe manner.
D. All vehicle parts and accessories including, but not limited to, containers of oils and fluids must be appropriately stored in an approved structure.
4. The repair is conducted in a manner so as not to allow any vehicle fluids to saturate the ground or enter any drainage system or body of water.
F. Leaving vehicles unattended on blocks, jacks, ramps or otherwise elevated above the ground is prohibited. (Ord. 2452 § 2, 2007; Ord. 2415 § 4, 2006; Ord. 2292 § 1, 2001).
Any premises or structures allowing or maintaining prostitution, lewd behavior, underage consumption of alcohol, the harboring of juvenile runaways or wanted persons, or where there is the use, sale, manufacturing or distributing of any narcotic or controlled substance, or at which there is a pattern of criminal activity are a prohibited nuisance. (Ord. 2292 § 1, 2001).
Graffiti or unauthorized defacement of any surface located on a private property must be removed within 10 days of discovery or notification by the Mountlake Terrace Police Department. (Ord. 2292 § 1, 2001).
Any place or premises which is required to have designated disabled parking spaces is prohibited from allowing those spaces to be blocked or made inaccessible, or to allow the required markings to be removed or obscured, including by age or lack of maintenance. (Ord. 2292 § 1, 2001).
A. The owner or manager of a property that is required to establish designated fire lanes shall maintain those fire lanes as specified by code. Allowing fire lane signs and/or markings to become altered, removed, or obscured, including by age or lack of maintenance, is prohibited.
B. The owner or manager of a property that is required to establish designated fire lanes shall keep those designated fire lanes free from obstructions including barriers, gates, and/or parked vehicles. Allowing obstructions of marked fire lanes is prohibited. (Ord. 2415 § 5, 2006).
A. Violation of, or failure to comply with, any provision of this chapter is a civil offense subject to a fine which may be set by resolution for the first three consecutive days the violation is maintained or allowed to exist. On the fourth consecutive day that the violation is maintained or allowed to exist, the violation shall constitute a continuing offense subject to the penalties in MTMC 8.15.090(B).
1. Any person or entity cited for violation under MTMC 8.15.090(A) may request an administrative hearing by notifying the Violations Bureau in writing within 15 days of the issuance of the citation. The requested hearing shall be brought before the Hearing Examiner in accordance with and pursuant to Chapter 2.120 MTMC.
B. A continued offense or subsequent violation of the same or like provision committed within a 24-month period shall constitute a misdemeanor crime and shall be punishable by a fine not to exceed $1,000 or 90 days in jail, or both such fine and jail, and shall be in addition to any civil remedy for abatement and collection for the cost and expense thereof. (Ord. 2292 § 1, 2001).
7. A statement of understanding that by entering into the voluntary correction agreement, the person responsible for the violation waives the right to a hearing as to the existence of the violation and stipulates to the same. A statement of understanding that an extension of the time limit for correction or a modification of the required corrective action may be granted if the person responsible for the violation has shown due diligence and/or substantial progress in correcting the violation, but unforeseen circumstances delay correction under the original conditions.
7. A statement that the costs and expenses of abatement incurred by the City and a monetary penalty in an amount per day for each violation may be assessed against the person to whom the notice of civil violation is directed as specified and ordered by the court.
Service of the notice to the person responsible for the violation, may be done either personally or by mailing a copy of the notice of civil violation by certified or registered mail, return receipt requested, to such person at their last known address. If the person responsible for the violation cannot be personally served within Snohomish County and if an address for mailed service cannot be ascertained, notice shall be served by posting a copy of the notice of civil violation conspicuously on the affected property or structure. Proof of service shall be made by a written declaration under penalty of perjury executed by the person effecting the service, declaring the time and date of service, the manner by which the service was made and, if by posting, the facts showing the attempts to serve the person personally or by mail.
1. Urgent Abatement. Whenever a condition, the continued existence of which constitutes an immediate threat to the public health, safety or welfare or to the environment, is found to exist, the City may summarily and without prior notice abate the condition. Notice of such abatement, including the reason for it, shall be given to the person responsible for the violation as soon as reasonably possible after the abatement.
2. Judicial Abatement. The City may seek judicial process, as it deems necessary to abate a condition which was caused by or continues to be a violation of the Mountlake Terrace Municipal Code and other methods of remedial action failed to produce compliance. An Order of Abatement is issued through the appropriate court of jurisdiction.
The costs, including incidental expenses, of correcting the violation shall be billed to the person responsible for the violation and/or the owner, lessor, tenant or other person entitled to control, use and/or control of the property and shall become due and payable to the City within 10 calendar days. The term “incidental expenses” includes but is not limited to personnel costs, both direct and indirect and including attorney’s fees; costs incurred in documenting the violation; hauling, storage and disposal expenses; and actual expenses and costs of the City in preparing notices, specifications and contracts, and in accomplishing and/or contracting and inspecting the work; and the costs of any required printing and mailing. All such costs and expenses shall constitute a lien against the affected property and may be subject to collection following a court judgment.
The lien shall be subordinate to all previously existing special assessment liens imposed on the same property and shall be superior to all other liens, except for state and county taxes, with which it shall be on a parity.
The City of Mountlake Terrace may cause a claim for lien to be filed for record within 90 days from the later of the date that the monetary penalty is due or the date the work is completed or the nuisance abated. The claim of lien shall contain sufficient information regarding the notice of civil violation, a description of the property to be charged with the lien, and the owner of record, and the total of the lien. Any such claim of lien may be amended from time to time to reflect changed conditions.
Any such lien shall bind the affected property for the period as provided for by state law. (Ord. 2292 § 1, 2001).

matches:
§ 1
§ 1
§ 1
§ 2
§ 1
§ 1
§ 3
§ 1
§ 1
§ 2
§ 4
§ 1
§ 1
§ 1
§ 1
§ 5
§ 1
§ 1


text:
There is a problem on the moon, which concerns humanity’s very identity. These high stakes will force us to answer an important question: which parts of humanity do we wish to eternalize? I’m talking about the problem of preserving mankind’s history on the moon. Right now, our international laws governing outer space, such as the Outer Space Treaty (“OST”) and the “Moon Treaty,” fail to guide us in solving this issue and worse may even be obstructing us from doing so. Unfortunately, there does not appear to be one clear answer; however, how we choose to preserve the origins of humanity as a space-faring species is something we must consider now, before it’s too late. This blog is intended to briefly survey relevant considerations to help start that conversation.
Here’s the issue: space, especially the moon, is getting busier. In addition to sovereign states, the moon has become appealing to private and commercial entities, increasing the concern that historical sites on the moon could be disrupted. This is not to suggest that any state or entity would intentionally do harm to these sites, but rather that mistakes happen. The more actors there are on the moon, the greater the risk for a blunder. When considering, for example, NASA’s lengthy recommendations on how to “Protect and Preserve” certain sites and objects on the moon, it’s clear that scientists and the American government are already concerned about this issue. The question then becomes – what steps can humanity take through our collective international laws to prevent such a tragedy?
Preservation Through the Outer Space Treaty?
One option is to reconsider the space treaties themselves. Article II of the Outer Space Treaty prohibits any national appropriation of the moon “by claim of sovereignty, by means of use or occupation, or by any other means.” In other words, as it stands now, creating a “U.S. [historical] site is just illegal, period.” However, Article VIII of the same treaty expresses that states maintain ownership over objects they place into space. Peculiarly, the United States has thus always owned the objects its Apollo missions placed on the moon; however, it cannot use restricted access as a means of protecting them or the site itself. Of course, debates over what “national appropriation” and “claim of sovereignty” actually mean can certainly be had, but such debates necessarily create and involve opposing parties. Flooding the world stage with opposing interpretations would do violence to the OST and undermine one of the greatest examples of human cooperation. Any preservation of space heritage will have to be built upon cooperation and taking an adversarial posture will not help its cultivation.
Does the Antarctic Hold the Answer?
Because cooperation is required, U.S. ownership or U.S.-dominated preservation is probably off the table. However, placing preservation in international hands could pave the way forward. Specifically, we might consider an addition to the OST similar to the 1991 Environmental Protection Protocol (EPP) to the Antarctic Treaty, which lays out various prophylactic measures, including those used to preserve Protected Areas in the Antarctic. Annex V of the EPP contemplates that “any area” may be protected via prohibited or restricted access on the basis of the area’s inherent value, including for historic reasons. Such restrictions must be in accordance with a detailed management plan that may be proposed by a number of scientific and research oriented entities.
However, extrapolating the EPP’s committee-like approach to designate areas on the moon for protection may prove more difficult. In contrast with scientific bodies with common goals in mind, the committee would likely be composed of states themselves, concerned with their own freedom in an increasingly accessible and strategically important realm. Interests in preserving certain areas may not always align. Additionally, designating restricted areas in the image of the EPP may run afoul of the OST itself. Indeed, the very first article of the OST states that celestial bodies “shall be free for exploration and use by all States” and that “there shall be free access to all areas of celestial bodies.” So while designation for protection may help solve the issue of national appropriation, it could also be seen as contravening a fundamental principle – the free exploration of space.
However, the Antarctic Treaty can still serve as a model for balancing freedom with preservation, as well as provide insight into the potential reaction from the world’s states. Like the OST, the Antarctic Treaty also restricts claims of national sovereignty, expressly providing for the “complete freedom of access at any time to any or all areas of Antarctica.” Yet, as discussed above, the EPP also allows for the possibility of restricted access. Moreover, such “complete freedom of access” described by the Antarctic Treaty is qualified and exists only for certain national representatives in order to carry out inspections. Similarly, any regime governing preservation on the moon should not require an absolute prohibition of access (as the moon sees an increase in traffic), but instead, only what is needed to ensure its protection. Although it cannot be known for certain how states would react, hopefully there would be a similar recognition for, and accession to, necessary efforts for preservation.
Is Faith in Cooperation Enough?
 Formally known as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Dec. 19, 1966, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter “Outer Space Treaty”].
 Formally known as the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, July 11, 1984, 18 U.S.T. 2410, 1363 U.N.T.S. 21.
 See Mind the Gap (In Space Law, That Is), For All Moonkind, https://www.forallmoonkind.org/2018/12/09/mind-the-gap/ (providing examples of planned moon activity).
 Cecilia Ballí, We Made History on the Moon. But How Do We Preserve It?, Houston Chronicle (Aug. 1, 2017, 1:24 PM), https://www.houstonchronicle.com/local/gray-matters/article/Moon-Preservation-11402877.php. See also Nell Greenfieldboyce, How Do You Preserve History on the Moon?, NPR (Feb. 21, 2019, 5:02 AM), https://www.npr.org/2019/02/21/696129505/how-do-you-preserve-history-on-the-moon.
 Specifically, I refer to “these sites” as including the Tranquility Base and the astronauts’ footsteps especially. While others may seek to protect numerous other sites, these sites in my opinion most magnificently capture man’s first endeavors to the moon.
 Outer Space Treaty, supra note 1, art. 2.
 See Greenfieldboyce, supra note 4 (Feb. 21, 2019, 5:02 AM), https://www.npr.org/2019/02/21/696129505/how-do-you-preserve-history-on-the-moon.
 Outer Space Treaty, supra note 1, art. 7.
 In an age of ever-increasing military technology, it is also paramount that the OST’s integrity remains intact. For example, Article IV places strict prohibitions on military activity in space and we would do well to not set a precedent of changing requirements and prohibitions. Outer Space Treaty, supra note 1, art. 4.
 For example, the Scientific Committee for Antarctic Research or the Commission for the Conservation of Antarctic Marine Living Resources. Id. at art. 5.
 However, this problem may be mitigated by the preservation interests of other nations. For example, the Soviet Luna 2, the first human-made object ever to each another celestial body, is still sitting on the lunar surface. Greenfieldboyce, supra note 7.
 Outer Space Treaty, supra note 1, art. 1(emphasis added).
 The Antarctic Treaty, supra note 11, art. 7 (emphasis added).
 See Greenfieldboyce, supra note 7(“[C]omputer modeling shows that it’s impossible to have a major landing on the moon without causing some degree of damage from all the dust and rock that gets stirred up.”).
 See James Clay Moltz, Toward Cooperation or Conflict on the Moon?, 3 Strategic Stud. Q. 82, 82 (2009), (“[D]espite frequent hopes for cooperation, most unclaimed territories historically have become sources of international conflict rather than serving as peaceful lebensraum.”).
 Diane Tedeschi, Preserving Historic Sites on the Moon, Air & Space Magazine (Oct. 2017), https://www.airspacemag.com/as-interview/michelle-hanlon-180964762/.

matches:
art. 2
art. 7
art. 4
art. 5
art. 1
art. 7