(Posted July 13, 2017) Today the Supreme Court of Virginia hands down two rulings related to the Atlantic Coast Pipeline.
The first, Chaffins v. Atlantic Coast Pipeline, LLC, presents a straightforward issue about notice of entry. Virginia’s public-service-corporation statutes allow companies to enter private property to perform surveying and other related work before building public projects. If the company can’t get the owner’s permission to enter, it gives advance notice of “the date of the intended entry,” and thereafter may enter and perform the work.
As part of the pipeline project, ACP gave certain Buckingham County landowners notice that it would enter their properties “on or after April 27, 2015.” In a DJ action, the landowners contended that an open-ended notice didn’t fairly apprise them of when the crews would be onsite. The company replied that it didn’t have to give an exact date; just an intended date. It noted that all sorts of things, from the weather to other projects, could affect the actual entry date.
The trial court agreed with the company, but today the justices reverse. They observe that the purpose of the notice provision is to enable the landowner to observe the entry, corral livestock while the company is onsite, and document any damage. If the company could show up at any time with no end date, the landowner would be left guessing.
The company argued that the landowner’s argument would lead to an absurd result – they gave the example of requiring a new notice every time the weather prevents a scheduled entry. The justices conclude that it might be inconvenient for the company, but that doesn’t make it absurd. That’s part of the price you pay for getting access to private property against the owner’s will.
Justice Mims’s opinion for a unanimous court contains an additional section. The company contended that the matter was moot because it had issued a subsequent notice to these landowners, telling them it would be onsite from July 6 to 11, 2015. That, you will admit, is far more informative, and the company contended that it superseded the initial open-ended notice.
Except it doesn’t expressly do that. In theory, the original notice would allow the company to enter the land today, or in the year 2525 – there I go, giving away my generation again – and the company has continued to maintain that the original notice was valid. The issue therefore isn’t moot.
It may be effectively over, though. Today’s opinion concludes with a remand “for further proceedings consistent with this opinion.” I understand that the company did enter the property and perform at least much of its work, so it may not need to enter again. (Note that this isn’t a condemnation action proper; that comes later.) In theory, those further proceedings could include a claim for damages to the property, but I don’t know about that. The enduring lesson of this case is that in this context, “on or after” won’t suffice for a notice.
The next case is Palmer v. Atlantic Coast Pipeline, LLC, and it raises wholly separate issues. Here, a landowner in Augusta County challenged not the date of entry, but ACP’s right to carry out the project in the first place.
The landowner used three lines of attack. First, she claimed that ACP can’t use our public-service-company statutes because those only apply to Virginia companies under Title 56 of the Code. ACP incorporated in Delaware. The Supreme Court rejects this argument because the relevant statute is broader: “Any firm, corporation, company, or partnership, organized for the bona fide purpose of operating as a natural gas company as defined in 15 U.S.C. § 717a …” ACP is within that broad definition.
But the landowner had a second argument, and this one looks like a killer: Article IX, §5 of the Virginia Constitution states that “[n]o foreign corporation shall be authorized to carry on in this Commonwealth the business of, or to exercise any of the powers or functions of, a public service enterprise.” Alas for the landowner, she didn’t present this argument in the trial court, so the contemporaneous-objection rule claims another victim.
This matters a lot. Now that the landowner won the Chaffins appeal, public service companies can adjust fairly easily; they just reword their notices. But if Palmer is right about this one, then ACP can’t employ Virginia’s statutes. That might prevent the company from building the pipeline at all, unless it forms a subsidiary company here in Virginia.
That waiver ruling is enough to end discussion on this issue, but it doesn’t. The court goes on to point out that the argument is waived for a second reason: The landowner saved her argument on this point for her reply brief. Her opening brief contained only a bare reference to the constitutional provision, and she poured on the argument in her reply. Experienced appellate lawyers will tell you that you can’t do that; the justices expect you to make the argument in your first brief.
Today’s opinion quotes the landowner’s lawyer from oral argument: “I didn’t present it [in the opening brief] because I thought it was a silver bullet.” He may have been right about that, but the court regards the argument as waived.
I’m going to try to read between the lines a bit here. Why did the court point out this waiver, when the first (and more familiar) one was 100% effective to shut off the issue? I sense that the court resented the lawyer’s effort to game the briefing system, maybe even to lie in ambush. After all, if the landowner deploys all her best arguments in the last brief of the case, the company can’t respond. That means that the court has to decide the appeal based on insufficient briefing.
The primary lesson here is elementary: Fire your ammunition in your opening salvo. The secondary lesson is that the justices expect you to help them to do their jobs – as former Justice Keenan put it, they regard lawyers as the court’s partners in the task of deciding what Virginia law will be. We sometimes get knee-deep in the process of advocating for a client and forget that role.
The landowner’s final argument is that her right to property is fundamental under Art. I, §11 of the Virginia Constitution. She contended that allowing companies to enter her land at all is a denial of due process. The justices are havin’ none o’ that; they note that while the right to property is indeed fundamental, it has never been absolute. Virginia’s common law and Code have recognized the right of entry for public purposes since the earliest days of the Republic. The court finally concludes that the 2012 amendment to the constitution – the one inspired by Kelo v. New London – didn’t change that.
Justice Mims writes this opinion, too, and once again the decision is unanimous. But Justice McCullough tacks on an irresistible concurrence that raises a fascinating issue: He contends that under the Virginia Constitution, there’s no such thing as substantive due process.
Where did that come from, you ask? It didn’t come from the opinion of the court; Justice Mims never mentions it. Justice McCullough observes that it “underpins the appellant’s argument,” so he addresses it.
Try as he might, he cannot conceal his disdain for the concept of substantive due process. He quotes legal observes as calling it “an oxymoron” and “a contradiction in terms.” He charts its rise (and subsequent falls, and rises again) in now-discarded rulings such as Dred Scott v. Sandford and Lochner v. New York. He even hints that SCOTUS’s recent decisions based on substantive due process should be regarded with equal suspicion, citing as examples Lawrence v. Texas and Obergefell v. Hodges.
Justice McCullough’s premise is that while the Nine at One First Street can interpret the federal constitution, the justices of the Supreme Court of Virginia are the final arbiters of the meaning of the Constitution of Virginia. If the federal jurists want substantive due process in their founding document, they can have it; but we have no obligation to import it here. He views due process as a purely procedural concept – the government cannot do certain things to you unless it follows certain procedures. That’s what due “process” is supposed to be.
You’ll note that Justice McCullough writes alone; none of the other members of the court sign on. That doesn’t necessarily indicate that they disagree with him. It may only mean that they didn’t see the need to bite off such a big chunk of the apple in order to decide this particular appeal. After all, they decide cases on the narrowest ground possible, and that almost never is a sweeping constitutional pronouncement. I can’t tell you how they view substantive due process; but Justice McCullough’s cards are face-up on the table.
I have never hesitated to quote our justices when their rhetoric soars. I think it livens up the reading of otherwise dry judicial opinions, and I hope you find that it livens up the reading on this website. With that in mind, I bestow upon you the gift of the concurrence’s penultimate paragraph, in its entirety. I loved it, and I suspect you will, too. Bon appétit.
To summarize, then, the United States Supreme Court deployed substantive due process in Dred Scott, and came to regret it; relied on substantive due process anew in the Lochner era, and again came to regret it; and to the regret of a vocal minority of the Court, has once more deployed it in our time. If the absence of any textual or historical support for the concept were not enough to persuade me that we should not embrace substantive due process as part of Virginia’s constitutional jurisprudence, a review of the United States Supreme Court’s jurisprudence convinces me that we ought to leave “substantive” due process and its shabby and disorganized baggage train across the Potomac.


text:
In Lillington -v- Ministry of Defence  EWCA Civ 775 the Court of Appeal made some interesting observations in relation to damages for loss of chance of career promotion. The court was somewhat sceptical about the (joint) submissions that damages for future loss of earnings could not be considered on a “loss of chance” basis and pointed to several cases where the courts have done exactly that. Here we look at those observations and review several of the key cases relating to loss of chance.
The defendant was appealing a factual decision that the claimant was entitled to additional damages of £62,559 on the basis that he would have been promoted to Corporal. The judge found that, on the balance of probabilities, the claimant would ahve been promoted and awarded that additional sum on the basis of this finding.
Lord Justice Vos made some preliminary observations.
At the beginning of the argument, Moore-Bick LJ asked Mr Yaqub Rahman, counsel for the MoD, whether the judge ought, instead of considering the matter on an “all or nothing” basis, to have considered awarding damages for the loss of the chance that the respondent would have passed the 2009 JCC and been promoted to Corporal. Mr Rahman dismissed this suggestion with great certainty and was supported in his approach by Mr Christopher Barnes, counsel for the respondent. They relied on the House of Lords’ majority decision in Gregg v. Scott  2 AC 176, where a patient had recovered no damages for the negligent delayed diagnosis of his cancer, because the delay had only reduced his survival chances from 42% to 25%, so he had not been able to show on a balance of probability that he would have been cured but for the negligence. That was a case where liability for medical negligence was in issue and in order to establish a cause of action the claimant had to prove (on a balance of probabilities) that he had in fact suffered harm as a result of the defendant’s negligence. It was not a case relating to the assessment of financial loss flowing from that harm which depended on the court’s view of whether or not a future event would have occurred. As it seems to me, there would have been grounds for thinking, in this case, that the judge ought to have awarded damages for loss of a chance (see Lord Diplock at page 176 inMallett v. McMonagle  AC 166, Lord Reid at page 213 in Davies v. Taylor  3 All ER 836; Langford v. Hebran  EWCA Civ 361, and Brown v. MOD  EWCA Civ 546). Since neither party asked us to consider this question, we can only proceed on the agreed basis, namely that the judge asked himself the correct question when determining whether special damages should be awarded for the loss of the respondent’s promotion to Corporal. I should not, however, be taken as accepting that the parties’ agreed approach was correct in law.
The Court of Appeal’s surprise is understandable. There are numerous cases where the courts have decided issues such as this on a “loss of chance” basis.
is read. In that judgment the House of Lords approved claims for loss of chance in relation to future prospects but stated that this approach could not be taken in relation to causation in clinical negligence cases. The judgment of Lord Nicholls of Birkenhead.
It is perhaps not surprising therefore that it is principally in the field of hypothetical past events that difficulties have arisen in practice. Sometimes, whether a claimant has suffered actionable damage cannot fairly be decided on an all-or-nothing basis by reference to what, on balance of probability, would have happened but for the defendant’s negligence. Sometimes this would be too crude an approach. What would have happened in the absence of the defendant’s negligence is altogether too uncertain for the all-or-nothing approach to be satisfactory. In some cases what the claimant lost by the negligence was the opportunity or chance to achieve a desired result whose achievement was outside his control and inherently uncertain. The defendant’s wrong consisted of depriving the claimant of a chance he would otherwise have had to achieve a desired outcome.
Then, the greater the uncertainty surrounding the desired future outcome, the less attractive it becomes to define the claimant’s loss by whether or not, on balance of probability, he would have achieved the desired outcome but for the defendant’s negligence. This definition of the claimant’s loss becomes increasingly unattractive because, as the uncertainty of outcome increases, this way of defining the claimant’s loss accords ever less closely with what in practice the claimant had and what in practice he lost by the defendant’s negligence.
In order to achieve a just result in such cases the law defines the claimant’s actionable damage more narrowly by reference to the opportunity the claimant lost, rather than by reference to the loss of the desired outcome which was never within his control. In adopting this approach the law does not depart from the principle that the claimant must prove actionable damage on the balance of probability. The law adheres to this principle but defines actionable damage in different, more appropriate terms. The law treats the claimant’s loss of his opportunity or chance as itself actionable damage. The claimant must prove this loss on balance of probability. The court will then measure this loss as best it may. The chance is to be ignored if it was merely speculative, but evaluated if it was substantial: see Davies v Taylor  AC 207, 212, per Lord Reid.
Some familiar examples will suffice. A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have happened if the claimant had been duly notified of her interview: Chaplin v Hicks  2 KB 786. When a solicitor’s failure to issue a writ in time deprived a claimant of the opportunity to pursue court proceedings damages were not assessed on an all-or-nothing basis by reference to what probably would have been the outcome if the proceedings had been commenced in time. The court assessed what would have been the claimant’s prospects of success in the proceedings which the solicitor’s negligence prevented him from pursuing: Kitchen v Royal Air Force Association  1 WLR 563. When an employer negligently supplied an inaccurate character reference, the employee did not need to prove that, but for the negligence, he would probably have been given the new job. The employee only had to prove he lost a reasonable chance of employment, which the court would evaluate: Spring v Guardian Assurance Plc  2 AC 296, 327.
In Herring v Ministry of Defence  EWCA Civ 528,  1 All ER 44 the Court of Appeal stated loss of chance claims do not replace the conventional means of assessing future loss of earnings but are more appropriate in cases where the chance to be assessed is where the chance is that the career of the claimant would take a particular course leading to significantly higher overall earnings than those which it is otherwise reasonable to take as the baseline for calculation.
For example, in Moores v Co-operative Wholesale Society Ltd (1955) Times, 9 May, CA, the plaintiff, a police officer, had been injured in a previous accident, and as a result his prospects of continuing in the police force were very slight. The second accident rendered him unfit for police duty. The Court of Appeal held that the effect of the second accident was to deprive the plaintiff of a ‘poor chance’ of continuing in the police force, and they reduced the damages substantially from £3,000 to £1,000.
In Chaplin v Hicks  2 KB 786, 80 LJKB 1292, CA – which was not a case of personal injuries – damages were given for the loss of an opportunity to be considered (on a competitive basis) for a theatrical engagement.
The loss of an opportunity is certainly a valid head of damages, and cases may be conceived where a claimant is injured on the way to an interview where he has good prospects of being selected for an important post. Loss of an opportunity of starting or continuing an apprenticeship, or a career in the armed forces, may also be caused by an accident at the critical time; or an examination may be missed. Such opportunities may be lost if not taken promptly, and the damages might be substantial, for example, Comer v Bolton  CLY 1159, CA where a girl lost the chance of attending a high-class secretarial course.
In Doyle v Wallace  30 LS Gaz R 25,  PIQR Q146, CA the claimant was a student when injured. Her case what if she had not been injured she would have qualified as a teacher. The Court of Appeal upheld the judge’s decision to base damages on the basis that she had a 50% chance of qualifying as a teacher.
lived, and that he may not have realised any of the hypothetical scenarios suggested.
In Appleton –v- Medhat Mohammed El Safty  EWHC 631 (QB) the court considered the loss of chance of a professional footballer on the basis that he had 75 chance of playing at championship level and 25% chance of playing in division one.
In Clarke-v- Malty  EWHC 1201 (QB) the claimant was a solicitor in private practice whose injuries meant she had a reduced earning capacity. She had lost the chance of partnership in large practices. Damages were assessed on the basis that she had a 100% chance of a fixed share equity in a regional law firm; an 85% chance of she would be a partner in a middle sized City firm and 30% chance of joining a city or central London firm as a partner.
In XYZ –v- Portsmouth Hospitals NHS Trust  EWHC 243 (QB) damages were awarded on the basis that the claimant would have set up and run a substantial business, there was a 50% chance that the business would reach £5 million and a 20% chance that his business would achieve a turnover of more than £10 million. The total award of damages was £6,740.646.
The courts have also considered the issue of the “chance” of a soldier remaining in the army in order to properly assess the claim for loss of pension,see Brown –v- Ministry of Defence  EWCA Civ 546.

matches: EWCA v. v. v. v. EWCA v. EWCA EWCA EWCA


§ 117-1 Civil service classification.
§ 117-2 Rules and regulations.
§ 117-3 Civil service rights and privileges.
§ 117-4 County liable for damages.
§ 117-5 Liability of Sheriff.
Editor's Note: This local law took effect 1-1-1980.
All officers and positions of employment in the Ulster County Sheriff's Office and Department, except the Sheriff, Undersheriff, Confidential Secretary, Administrative Process Server and Process Servers, and all above the rank of Sergeant as well as all other personnel presently or hereafter filling the same or similar positions, or otherwise excluded by other laws, namely the Sheriff and Undersheriff, are hereby placed in the classified service pursuant to the Civil Service Law of the State of New York.
Such officers and positions shall be held and filled according to the provisions of the Civil Service Law and the rules and regulations of the County Personnel Director and shall be governed and controlled and shall be subject to such Civil Service Law and such rules and regulations.
Notwithstanding the foregoing provisions, all employees presently in the Sheriff's Office or Department who have been continuously employed from January 1, 1979, in their respective positions and prior to the effective date of this article shall be covered-in into their respective positions without an examination.
Those positions identified in § 117-1 are hereby afforded § 75 rights and privileges under the Civil Service Law.
All full-time employees hired subsequent to January 1, 1979, shall be afforded § 75 rights and privileges after completing one year of full-time continuous service.
Noncompetitive labor class positions filled subsequent to January 1, 1979, must complete one year of continuous full-time employment prior to entitlement of § 75 rights and privileges.
Any act or omission of any employee of the County in the Sheriff's Department done or made in the performance of an official duty shall be the act or omission of the County, and the County shall be liable for any damages which may arise as the result of such employee's negligence in carrying out such official duty.
Nothing herein contained shall be deemed to render the County responsible or liable for the acts of the Sheriff nor to relieve the Sheriff from any liability to which he or she is lawfully subject.


Gideon at a public defender reports on State v. Phillips, a Connecticut appellate decision in which four different jurors testified that a fifth juror was racially prejudiced. The trial judge held that any prejudice hadn't affected the deliberations, but the appellate court reversed because that was the wrong standard: "If the court does find that a juror is racially biased, through speech orconduct, such conduct is ipso facto prejudicial and the defendant is entitled to a new trial".
Meanwhile, Barry Barnett at Blawgletter beat me to Wednesday's opinion in Alcala v. Emhart Industries, Inc. where Chicago federal judge Amy St. Eve refused to let the lawyers ask voir dire questions about jurors' attitudes on lawsuits and tort reform. The Seventh Circuit said this was fine, since Judge St. Eve did ask the jurors about their experiences with lawsuits and whether they had any beliefs that would keep them from being impartial. Barry has a great time imagining the tort-reforming juror who might have "made his way onto the jury by denying, silently to himself, that he couldn't judge the case impartially."
J. Craig Williams at May It Please The Court adds thoughts on the California Peregrine trial, where witnesses have been barred and a juror has been dismissed for reading a trial blog written by a local lawyer who's being paid to cover the trial by an anonymous law firm.
Eric Turkewitz at New York Personal Injury Attorney Blog follows the malpractice case brought by Notre Dame football coach Charlie Weis against two doctors. The trial was set for February, but that didn't work out; the judge had to declare a mistrial after a juror became sick and the defendant doctors rushed forward to save him. This week a new trial ended in a verdict for the doctors.
Adam Levin of Southern Criminal Law and Justice had a good idea, and sent a long list of questions about criminal defense practice to lawyers he admired. Mark Bennett at Defending People has started a series answering them (the first post is a reading list), and Jon Katz at Underdog Blog has his answers here. As always, civil lawyers can use their advice too. From Jon, for example: "Q. What is the most overlooked tool of investigation? A. Close and deep listening."
More good advice for civil and criminal lawyers alike: Steven Gustitis at The Defense Perspective starts a series on "building the persuasive case" with a detailed post on how to get the facts.
Finally, a tidbit from me: remember to ask experts what their opinion is "to a reasonable degree of professional certainty in the field of ________", and you'll save yourself the many minutes of agony I spent in front of one of my first juries, having objections sustained to one attempt after another because I didn't know that. This tip may not be needed much longer, though; Walter Olson at Point of Law reports on recent proposals to change the standard.
4. The high cost of trials.
Why are there fewer jury trials? Maybe in part because so many lawyers struggle to try cases within a budget that reflects their value to the client. Stephen Rosenberg at Boston ERISA & Insurance Litigation Blog reports on recent research suggesting that "the costs of patent infringement litigation actually exceed the economic value across all industries of patenting inventions." Eric Goldman of Technology & Marketing Law Blog reports on how Susman Godfrey prices plaintiff's patent cases here.
Meanwhile on the criminal side, the WSJ Law Blog reports on the eight-figure fees paid in the defense of recent prominent criminal cases. (Some were awfully close to nine figures.) Simple Justice argues here that big firms are the wrong choice for these cases; I don't think that's always true, but the post is good.
In a lovely post at Concurring Opinions, Melissa Waters points to a new Connecticut Law Review article arguing that "law's rhetoric - and therefore law itself - lags behind reality, due in part to out-dated assumptions about rural communities." For trial lawyers, the article is a reminder that we stereotype rural jurors in the same way. For Melissa Waters, it had a more personal connection: the article cites an opinion by her dad, who was a federal judge in Arkansas, and she tells a nice story about him.
Here's a California man who is requesting a deferral from jury duty, because the date doesn't work for him. His jury date is right before he leaves for Nippon, Japan, for the 2007 Worldcon -- that's World Science Fiction Conference. Don't laugh: over 6,000 people traveled to Anaheim, California for the 2006 event.
[W]e examine how jurors who responded to summonses for jury duty evaluated portions of videotaped testimony involving probabilities and statistics. Although some jurors showed susceptibility to classic fallacies in interpreting conditional probabilities, the jurors as a whole were not overwhelmed by a 99.98% exclusion probability that the prosecution presented. Cognitive errors favoring the defense were more prevalent than ones favoring the prosecution.
[T]he most striking thing about jury nullification is that nothing is done to actually prevent or punish jurors who behave this way. In this paper, I explore three rationales for why jury nullification is an officially tolerated, if not necessarily welcome, element of Anglo-American criminal law jury trials.
The empirical results indicate that 6 person juries are no quicker than 12 person juries; as cases become more complex and/or more severe, juries deliberate longer; non-unanimous decisions take longer to reach than unanimous ones; panels that saw many potential jurors excused during voir dire end up deliberating longer than panels with fewer challenges.
Jurors rely heavily on witnesses' confidence and veracity when evaluating credibility. Three studies demonstrate that jurors will regard a witness's calibration - the relation between that witness's own confidence and accuracy - as more important than either confidence or veracity when calibration information is available. We have already shown (Tenney et al. 2007) that initially jurors prefer a high-confidence witness; however, when an error allows the evaluation of calibration, jurors prefer a low-confidence but well-calibrated witness to a high-confidence poorly-calibrated one.
This article proposes an approach to deal with non-testifying demeanor evidence that occurs outside the witness box. Given the problems with having jurors rely on demeanor evidence, courts should be carefully monitoring the use of non-testifying demeanor evidence. Appropriate jury instructions should be given, including those warning jurors on proper use of such evidence.
We asked a representative sample of 1,465 residents of Texas to state whether they would prefer a jury or a judge to be the decision maker in four hypothetical circumstances. Consistent with expectations, non-Hispanic whites favored juries over judges, particularly if they imagined themselves as a defendant in a criminal trial. By comparison, although African-Americans and some Hispanics generally favored juries, they showed a much weaker set of jury preferences. African Americans had markedly lower support for the civil jury, but support was higher among minorities with prior jury service. Among Hispanics, respondents who took the survey in Spanish typically preferred a judge to make legal decisions. We consider the implications of our findings for trust in the jury system and trust in community members as decision makers.
Don't print them all at once, or the sunscreen won't fit in your beach bag.
1. The listener and the liar. By now you've heard about the British juror who hid an MP3 player under her Muslim headscarf, and the Cape Cod juror who tried to get out of jury by claiming he was a racist, a homophobe, and a liar. The stories are interesting not just because they happened, but because of how far and fast they spread. The Muslim music story is being reported in South Africa, and I had to turn off my Technorati "jury duty" search because it seemed like every personal blogger in America wanted to talk about the racist liar. In case we needed a reminder, racism, homosexuality, and Islam are very hot topics -- and so is the idea of a juror rebelling against the system, whether by tuning out or by spouting off.
Americans believe that the civil justice system provides essential safeguards for them at a time when corporate misconduct is such a serious problem.
Ken Shigley at the Atlanta Injury Law & Civil Litigation Blog reports the survey in more detail and considers what it means for jury selection.
Or you could go to the social networking site Vox.com, where the "Question of the Day" last week was "Have you ever served on a jury? What was your experience?" There are dozens of responses.
So as you argue to a jury of twelve that there is some possibility, no matter how remote, that one individual's failure to abide the rules that the government tells us required and expected of all good citizens, think about what you're asking them to do. Noncompliance in a compliant society is unthinkable.
I know I keep saying this, but civil trial lawyers, read the criminal defense blogs. Both those posts, for example, apply fully to civil trials.
5. Jurors under pressure. Jon Katz of the Underdog blog had a long and thoughtful post after the July 3 mistrial of Alfredo Prieto. The mistrial came when a holdout juror wrote the judge that his colleagues were pressuring him like "a pack of lions protecting their kill." "[O]ne is left to wonder," Jon says, "if, in a one-phase trial, juror psychology would make jurors less likely to reveal improprieties in jury deliberations with increased passage of time. The answer likely is yes."
J.D. Hull What About Clients? has "Sensitive Litigation Moment No. 17: Informal Discovery," on the wealth of investigative information on the Internet that many trial lawyers miss: "Next time a new case begins, resist rushing into written discovery and depositions. Step back from the discovery routine--you'll get into that bubble soon enough--and learn a few things on your own."
Mary Whisner at Trial Ad Notes points to a study by Duke's Neil Vidmar, one of the leading jury researchers anywhere. This paper is Medical Malpractice and the Tort System in Illinois, and it concludes "that the Illinois tort system does not appear to be the cause of the undisputed fact that doctors' liability insurance premiums showed dramatic rises."
Elliott Wilcox at Winning Trial Advocacy Techniques Blog talks about referential questions we ask in depositions like “This blood here, is that from this general area here, or is that from another area?” There's nothing like a deposition answer you know would convince the jury -- if anybody could figure out what you and the witness were talking about. He gives good (in fact, good/better/best) suggestions for how to fix the problem.
Evan Schaeffer's Illinois Trial Practice Weblog has a quote from the great trial consultant David Ball, from his book David Ball on Damages, on how juries get damages wrong because lawyers forget to explain how to get them right. If you do civil work, it's worth posting where you'll see it often.
We recognize that there is a power differential between a United States District Court judge and a juror. Generally, a juror would be hard-pressed to disagree with a premise stated by the district court with which the district court asks the juror to agree. The better practice is for the district court to ask non-leading questions when examining a juror for bias.
Sounds like another trial lawyer blogger, complaining about judges who browbeat jurors into denying their biases. But wait: it's the Seventh Circuit Court of Appeals, in an opinion yesterday called United States v. Sloan. I promised I'd talk more today about lawyers on juries, and I'll get back to that soon, but this might be a big deal.
It's not the judge's leading question that's surprising. Some fine judges read this blog, but it has to be said: judges ask leading questions in voir dire all the time. They're famous for their skill in rehabilitating jurors who admit prejudice. What's surprising is that an appellate court noticed it, and didn't like it.
The district court: Hold on just a second and let me say out loud what I was told; that you thought it might—when you got to thinking about it more, you thought it might have been Christian, although we covered it several ways, and you apparently were concerned because you’re a deacon in your church, that you might have some conflict of interest or something?
Juror Propes: Yes, I don’t know if I just didn’t catch it the whole time or exactly what it was, but I have an issue with making money with churches. I’m a member of a church, I’m a faithful member of a church, and I know we have different ways of acquiring money, and it’s not through anything like this. I just totally disagree with this.
The district court: All right. You can tell now from having heard both the opening statements and more of the evidence that the issues of the Christian religion are really tangential to this dispute. So I don’t foresee any way in which there would be a conflict of interest. And I just wanted to raise that with you and make sure that you were of the same way of thinking, that it shouldn’t conflict with your religious beliefs. Do you agree with that?
"There is little doubt that the district court’s colloquy with Juror Propes was leading," the Seventh Circuit said. "[T]he district court asked Juror Propes to agree with its own opinion."
You will have observed that the defendants in this case are African-Americans. I do not have to tell you, but for purposes of this question I will tell you, that race is not an issue in this case. It cannot be. It must never be an issue in deciding the guilt or innocence of a defendant.
“[T]he group voir dire setting can impede honest statements of opinion or bias.” 1 JURYWORK § 2.11 at 2-72.30. It is not surprising that the jurors, confronted with a demand for a public response to a closed-ended, non-leading question, following the district court’s admonition, provided only a socially acceptable response. See 2 JURYWORK § 17.03 at 17-53. The district court then took the lack of any negative response to its question as an affirmation or pledge that the jurors would give the defendants a fair and impartial trial “notwithstanding their ancestry.” Trial Transcript at 56. However, closed-ended questions, such as the one and only one propounded by the district court, encourage jurors to deny their true feelings and opinions about race, effectively ending the voir dire before it has begun. See 2 JURYWORK § 17.03 at 17-54.
That being said, there was no indication during the questioning by the district court that Juror Propes had any bias. Juror Propes was selected as a juror because he swore that he could be impartial and base his verdict only on the evidence that was presented. After expressing his concerns and having them assuaged y the district court’s explanation, he agreed that there was no conflict. The district court was satisfied by Juror Propes’ response, as are we.
It's not easy to be satisfied with Mr. Prope's response. What he said, after only opening statements and a little evidence, was "I just totally disagree with this," meaning Mr. Sloan's business model. But defense counsel hadn't objected at trial, or asked that he be removed, or moved for a mistrial -- which made it easier for the appellate court to be satisfied.
It's worth remembering the case, though. If you haven't yet, take a piece of paper, write "Trial Notebook: Voir Dire" at the top, and start a list of cases you want handy reference to, beginning with "leading questions -- United States v. Sloan." Let me know what happens when you use it.
It's not catchy, I'll admit. But it's the most useful technique I know in voir dire. And I should have included it in a post last week.
I wrote about the California Supreme Court's decision in The Oakland Raiders v. National Football League, and how it teaches yet again that lawyers who serve on juries are going to lead those juries. Scott Greenfield at Simple Justice responds, very fairly, with a question. "In my last trial, the full panel of 45 had more than a dozen lawyers," Scott says. (Yikes.) When you stand up to voir dire that group, what do you do?
Let's strike all the lawyers?
[B]y allowing a lawyer on my jury, I must presume that I am entrusting my client's fate to one person, who will then bring the others around to his point of view regardless of whether that's his intention.
"So we resort to our own obvious lawyer prejudices in deciding who is the most evil lawyer on the panel," Scott concludes, but stereotypes aren't helpful either. "Any ideas?" he asks.
I do have ideas -- ideas I hope are helpful not just with lawyer jurors but with any potential juror, especially one who will clearly be a leader on the panel. When questions about biases and attitudes run dry, as they quickly will, you don't need to resort to stereotypes. There are two other, powerful, ways to learn about jurors' attitudes: Ask about experiences, and ask about behaviors.
1. Ask about experiences. You have attitudes. Where did they come from? They came from your experiences, from what has happened to you and what you have seen. Jurors are the same.
Our experiences shape our attitudes. Studies show it all the time. Clinical instructors in radiation therapy show more positive attitudes toward their students' evaluations if they themselves had good experiences as students. People who have been "exposed to prison," either because they've been incarcerated or they know someone who has, have less confidence in and support for social controls than do people who have been spared that experience. "People who have a close gay friend or family member are more likely to support gay marriage and they are also significantly less likely to favor allowing schools to fire gay teachers than are those with little or no personal contact with gays," a May 2007 Pew Research Center survey found.
So let's say I was on your jury panel, and you knew I'd been with the same large-ish Midwestern corporate law firm for 26 years. If you're a criminal defense lawyer, or a plaintiff's lawyer in a civil case, you could go ahead and reserve a peremptory strike for me, or you could ask more about my life -- in which case you'd learn that I'm married to a public defender and that through various friends and connections over the years I've had a good look at mental health issues, addiction, and the criminal justice system. If you asked me about civil topics, you'd learn that I've almost never made any kind of claim, and I've probably skipped lots of chances to get refunds, tax credits, and such. I've represented corporate defendants against some truly manipulative abuses of the justice system; but I've represented plaintiffs too, and co-tried a case that ended in one of the largest local verdicts a few years ago.
Do you strike me? That depends on your case and who's sitting next to me, but at least you have a sense of what you're getting.
When I work with lawyers to get ready for voir dire, we spend most of our time brainstorming experiences, listing what could possibly have happened to a juror that might resonate with the case we're working on. I've written more about that process here.
2. Ask what experiences mean. Experiences shape attitudes, but don't assume you know how they shape them. Say your panel includes a clean-cut white lawyer, male, late 30s, married, and when you ask about his experiences, you learn that his dad worked for the CIA. Don't strike him yet. He's Mark Bennett, the Houston criminal defense lawyer (and terrific blogger), and his e-mail address today ends in fightthefeds.com.
Our experiences affect us differently. Some people who lost loved ones on 9/11 emerged with hatred for all Muslims; others found themselves driven to better understand them. Some families of murder victims become fervent death penalty advocates; others become just as fervent in their opposition to the death penalty. When you learn that a juror's experience will be important to your case, then, your next question is what it means. What did he take away from that? What kind of meaning does he find in that experience? What does that experience mean to him now? You're on very personal ground here, so be respectful, but ask.
3. Ask about behaviors. The other way we display our attitudes is in the way we act. If you ask potential jurors how they feel about immigrants or companies with foreign ownership, you may get bland answers. If you ask which jurors make an effort to buy only American-made products, or if your bumper-sticker question turns up one that says "Build The Wall," you'll have learned something. Jurors who think of themselves as completely open on race issues may drive miles to avoid going through black neighborhoods.
Again, this comes from brainstorming. Make a list of all the ways that jurors might act out their perspective on your case -- donations, letters to the editor, radio call-ins, ribbons around their trees, year-round flag displays, and yes, bumper stickers -- and then ask about them, as much as you can.
Tomorrow I'll add some thoughts about techniques when lawyers end up sitting on the jury.
Other posts here on the importance of asking about experiences in voir dire include A Helpful Way To Think About Race and Tears, Pain, And History In The James Seale Voir Dire.
Is Mark Bennett "the best new legal blogger of 2007"? I'd never argue with Capital Defense Weekly, especially when it's giving out well-deserved praise.


In a state, such as Kansas, with an approved Historic Preservation Program, only the State Historic Preservation Officer (SHPO) may formally submit a nomination for listing of a property on the National Register of Historic Places to the National Park Service. Only the State Historic Sites Review Board, in conjunction with the SHPO, can list a property on the State Register of Historic Places. Any person may submit a nomination form for any property to the SHPO. While private property may not be placed on the National Register without the owner's consent, no statutory provisions limit the placement of public property on either the National or State Registers. Cited herein: K.S.A. 75-2717; 75-2720; 75-2721; K.S.A. 1999 Supp. 75-2724; 16 U.S.C. § 470a; 36 C.F.R. §§ 60.1; 60.2; 60.3; 60.5; 60.11; 60.12.
You ask who has standing to petition for a vacated public school building to be placed on the State and National Registers of Historic Places. The question could also be phrased as, "May the school be placed in the Registers when the school board did not request for registration?"
To put this issue in context, listing on the National Register does not, so far as federal law is concerned, burden landowners, but it does require that federal agencies take into account the effect of any proposed action on the protected property.(1) Listing on the National Register does make the property owners eligible for various grants and tax credits.
Federal law requires the SHPO to consult with local authorities in the nomination process.(13) The SHPO is required to provide notice of its intent to nominate a property to the property's owners.(14) Owners are defined to include "public agencies holding fee simple title to property."(15) Owners of private property, however, are also notified that they have a right to object to the listing.(16) Privately owned property may not be placed on the national list if the owner objects (or if a majority of owners object in the case of a historic district).(17) Because the school building is not private property, the school board would be unable to keep it from being added to the National Register by objecting.
An attempt to limit the SHPO's authority to nominate public buildings could be inconsistent with the National Historic Preservation Act, and this inconsistency could possibly result in the program's loss of approval.
The State Register of Historic Places is established by K.S.A. 75-2721.
"(1) Undertake a statewide survey to identify and document historic properties, including all those owned by the state, its instrumentalities and political subdivisions.
"(2) Prepare and maintain a state register of historic places, which shall include all those listed on the national register of historic places. The historical society shall adopt standards for the listing and maintenance of historic properties on the state register consistent with relevant federal standards for preservation and care of historic properties."
In conclusion, in a state, such as Kansas, with an approved Historic Preservation Program, only the State Historic Preservation Officer (SHPO) may formally submit a nomination for listing of a property on the National Register of Historic Places to the National Park Service. Only the State Historic Sites Review Board, in conjunction with the SHPO, can list a property on the State Register of Historic Places. Any person may submit a nomination form for any property to the SHPO. While private property may not be placed on the National Register without the owners consent, no statutory provisions limit the placement of public property on either the National or State Registers.
1. 36 C.F.R. § 60.2(a).
2. K.S.A. 1999 Supp. 75-2724.
3. 36 C.F.R. § 60.1(b)(3).
4. 36 C.F.R. § 60.1(b)(4).
5. K.S.A. 75-2717, Executive Order 76-17.
6. 36 C.F.R. § 60.11(a).
8. 36 C.F.R. § 60.5(j).
9. 36 C.F.R. § 60.5(l). If a private property owner disputes a nomination, it is still forwarded for determination of eligibility for listing. 36 C.F.R. § 60.5(n). Again, the effect determining that a property is eligible, but not actually listed, is to cause a review of harm from federal projects.
10. 36 C.F.R. § 60.12.
11. 36 C.F.R. § 60.6(t).
12. 36 C.F.R. § 60.6(r).
13. 36 C.F.R. § 60.5(b).
15. 36 C.F.R. § 60.3(k).
16. 36 C.F.R. § 60.5(b).
17. 16 U.S.C. § 470a(a)(6); 36 C.F.R. § 60.5(j). The prohibition on listing of property in the National Register without the owner's consent was not in the original Act, Pub. L. 89-665 (1966), but was added later in a major revision of the Act, Pub. L. 96-515 (1980).
18. 36 C.F.R. § 60.11; 16 U.S.C. § 470a(3).
19. 16 U.S.C. § 470a(b)(3)(B).
20. The KSHS informed this office that the State Historic Sites Review Board has adopted a policy of not listing private property on the State Register without the owner's consent.


text:
D.Sc., 1987, Institute for Problems in Mechanics of the Russian Academy of Sciences, Moscow.
Editorial Advisors of Research Signpost (India).
Book series Differential and Integral Equations and Their Applications, Chapman & Hall/CRC Press, Boca Raton–London.
more than 210 research papers and three patents.
A. D. Polyanin and V. F. Zaitsev, Handbook of Ordinary Differential Equations: Exact Solutions, Methods, and Problems, CRC Press, Boca Raton–London, 2018.
A. D. Polyanin and V. E. Nazaikinskii, Handbook of Linear Partial Differential Equations for Engineers and Scientists, Second Edition, CRC Press, Boca Raton–London, 2016.
A. D. Polyanin and V. F. Zaitsev, Handbook of Nonlinear Partial Differential Equations, Chapman & Hall/CRC Press, Boca Raton–London, 2012 and 2004.
A. D. Polyanin and A. I. Chernoutsan (Eds.), A Concise Handbook of Mathematics, Physics, and Engineering Sciences, Chapman & Hall/CRC Press, Boca Raton–London, 2010.
A. D. Polyanin and A. V. Manzhirov, Handbook of Integral Equations, Chapman & Hall/CRC Press, Boca Raton–London, 2008 and 1998.
A. D. Polyanin and A. V. Manzhirov, Handbook of Mathematics for Engineers and Scientists, Chapman & Hall/CRC Press, Boca Raton–London, 2007.
A. D. Polyanin and V. F. Zaitsev, Handbook of Exact Solutions for Ordinary Differential Equations, CRC Press, Boca Raton–New York, 2003 and 1995.
A. D. Polyanin, Handbook of Linear Partial Differential Equations for Engineers and Scientists, Chapman & Hall/CRC Press, Boca Raton–London, 2002.
A. D. Polyanin, A. M. Kutepov, et al., Hydrodynamics, Mass and Heat Transfer in Chemical Engineering, Taylor & Francis, London, 2002.
V. F. Zaitsev and A. D. Polyanin, Discrete-Group Methods for Integrating Equations of Nonlinear Mechanics, CRC Press/Begell House, Boca Raton–Ann Arbor, 1994.
A. D. Polyanin and V. V. Dilman, Methods of Modeling Equations and Analogies in Chemical Engineering, CRC Press/Begell House, Boca Raton–Ann Arbor, 1994.

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


Pro se Plaintiff Jason Allen Brown, filed this 42 U.S.C. § 1983 civil rights action regarding his detainment and arrest by the Chicago Police Department in September 2014. Named as Defendants are Chicago Police Department employees Sergeant Sanchez, Officer Bridges. Officer Konior, Officer Louie, Officer Randolph. Officer Rattler. Sergeant O'Donnell, Sergeant Garvey, and Lt. Robinson. This matter is now before the Court for ruling on Defendants' partial motion for summary judgment (Dkt. 94). For the reasons stated herein, Defendants' motion is granted in part and denied in part.
Pursuant to Federal Rule of Civil Procedure 56(a), this Court ''shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."' To establish that a material fact is undisputed, a party "must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials." Rule 56(c)(1). "The court need consider only the cited materials, but it may consider other materials in the record." Rule 56(c)(3). Courts must "construe all facts and draw all reasonable inferences in favor of the nonmoving party." Van den Bosch v. Raemisch, 658 F.3d 778, 785 (7th Cir. 2011), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Once the party moving for summary judgment demonstrates the absence of a disputed issue of material fact, "the burden shifts to the non-moving party to provide evidence of specific facts creating a genuine dispute." Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The non-movant must go beyond the allegations of his complaint and "set forth specific facts showing that there is a genuine issue for trial." Hannemann v. Southern Door County School Dist., 673 F.3d 746, 751 (7th Cir. 2012). A genuine issue of material fact exists only if there is evidence "to permit a jury to return a verdict for" the nonmoving party. Egonmwan v. Cook County Sheriffs Dept., 602 F.3d 845, 849 (7th Cir. 2010); Carroll, 698 F.3d at 564 ("[m]ere metaphysical doubt" about material facts is not enough).
Local Rule 56.1 "is designed, in part, to aid the district court, 'which does not have the advantage of the parties' familiarity with the record and often cannot afford to spend the time combing the record to locate the relevant information, ' in determining whether a trial is necessary." Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (citation omitted). Under Local Rule 56.1(a)(3), the moving party must provide "a statement of material facts as to which the moving party contends there is no genuine issue." Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) (quoting N.D. Ill. L.R. 56.1(a)); see also Fed. R. Civ. P. 56(c). The opposing party must then "file 'a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon.'" Cracco v. Vitran, Exp., Inc., 559 F.3d 625. 632 (7th Cir. 2009) (quoting N.D. Ill. L.R. 56.1(b)(3)(B)). The opposing party may also present a separate statement of additional facts that requires the denial of summary judgment. See Ciomber v. Coop. Plus. Inc., 527 F.3d 635, 643 (7th Cir. 2008) (citing N.D. III. L.R. 56.1(b)(3)(C)). A court may consider true any uncontested fact in the movant's Rule 56.1 Statement that is supported by the record and is not addressed by the opposing party. Raymond v. Ameritech Corp., 442 F.3d 600. 608 (7th Cir. 2006); see also Fed. R. Civ. P. 56(e)(2); Local Rule 56.1(b)(3)(C).
Defendants submitted Statements of Uncontested Facts, (Dkt. 98), to which Plaintiff responded. (Dkt. 104). Plaintiff also submitted a memorandum (Dkt. 103) responding to Defendants' legal memorandum (Dkt. 95).
Defendants argue in their reply brief that Plaintiffs response to their Local Rule 56.1 Statement of Facts is improper in several ways, in that Plaintiff: (1) in some instances fails to provide specific references to the record; and (2) offers nothing more than legal arguments or conclusions. Defendants contend that because Plaintiff failed to comply with Local Rule 56.1. their statement of facts should be deemed admitted.
Even to the extent Plaintiff failed to completely comply with Local Rule 56.1, it would not "automatically result in judgment for the movant, " asi-[t]he ultimate burden of persuasion remains with [the movant] to show that [he] is entitled to judgment as a matter of law." Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006). Where Defendants' statements are properly supported by the cited materials and are not otherwise disputed by evidence Plaintiff raises, including his deposition testimony (Dkt. 98-4), the Court will consider those statements as undisputed. See Local Rule 56. 1(b)(3)(C). But, where Plaintiff has pointed to evidence contrary to Defendants* statements of fact in in the record or could properly testify himself about the matters asserted, the Court will consider that evidence. See Sistrunk v. Khan, 931 F.Supp.2d 849, 854 (N.D. Ill. 2013); Fed.R.Evid. 602. The Court will, however, not dig through the record to identify disputed issues of fact that are not otherwise supported. See Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007) ("In considering a motion for summary judgment, the district court is not required to scour the record in search of evidence to defeat the motion; the nonmoving party must identify with reasonable particularity the evidence upon which the party relies.") see also Almy v. Kickert Sch. Bus Line. Inc., No. 08-cv-2902, 2013 WL 80367. at *2 (N.D. Ill. Jan. 7, 2013) ("[C]ourts are not required to 'wade through improper denials and legal arguments in search of a genuinely disputed fact.*") (quoting Bordelon v. Chi. Sch. Reform Bd. of Trs.. 233 F.3d 524, 529 (7th Cir. 2000)). And, of course, the Court will not consider factual statements as refuted by purely legal arguments, incomplete responses that lack evidentiary support, or responses that are inconsistent with deposition testimony.
With these guidelines established, the Court turns to the facts of this case.


Summary: In the indictment, the State alleged Appellant intentionally, knowingly, or recklessly tortured or in a cruel manner killed or caused serious bodily injury to an animal by shooting a dog with a crossbow, a state jail felony. The dog in question was a stray, which fell within the statutory definition of an “animal.” After a jury found Appellant guilty, the trial court assessed his punishment at two years' confinement in a state jail. On appeal, Appellant contended that the trial court erred by denying his motion for a mistrial after the jury heard evidence of an extraneous offense also involving cruelty to animals. Since the video that mentioned the extraneous offense was admitted without objection, the court held the Appellant waived the error and the trial court did not err by denying Appellant's motion for mistrial or by giving the instruction to disregard and overrule Appellant's first issue. Appellant further asserted the evidence was insufficient to support his conviction. The court, however, held the evidence was sufficient for a rational trier of fact to have found, beyond a reasonable doubt, that Appellant intentionally, knowingly, or recklessly tortured or in a cruel manner killed or caused serious bodily injury to an animal by shooting it with a crossbow. The trial court's judgment was therefore affirmed.
*1 Appellant Christopher Swilley appeals his conviction for the felony offense of cruelty to animals. Appellant contends that the trial court erred by denying his motion for a mistrial after the jury heard evidence of an extraneous offense also involving cruelty to animals. Appellant further asserts the evidence was insufficient to support his conviction. We affirm the trial court's judgment.
In the indictment, the State alleged Appellant intentionally, knowingly, or recklessly tortured or in a cruel manner killed or caused serious bodily injury to an animal, to-wit, a dog, by shooting said dog with a crossbow, a state jail felony. SeeTex. Penal Code Ann. § 42.092(b)(1), (c) (West 2011). The dog in question was a stray, which falls within the statutory definition of an “animal.” See id. § 42.092(a)(2). The offense was punishable by confinement in a state jail facility for not more than two years or less than 180 days and a fine not to exceed $10,000. Id. § 12.35 (West Supp.2014). After a jury found Appellant guilty, the trial court assessed his punishment at two years' confinement in a state jail.
Roy Ponce testified that on April 11, 2012, he heard a loud noise like a dog in a lot of pain “just screamed and took off running.” He looked out his front door through his glass storm door and saw Appellant, his neighbor, carrying a crossbow and walking away from the street toward the back of Appellant's house, which was directly across the street from Ponce's home.
Ponce testified that a Husky mix that had taken up residence as the neighborhood dog was not lying in his front yard as it normally did. Ponce described the dog as a friendly stray that often played with his children and who came through a break in his wooden fence to eat with his other dogs. Ponce denied ever seeing the dog act in a rough or aggressive manner. He, his wife, and his children were not afraid of it.
Ponce testified that he walked to the back of his house and found the dog had come through the hole in the fence and was lying under his carport with an arrow in it. He said there was a lot of blood and described the dog as breathing heavily. As Ponce approached, the dog got up, bumped into a carport post— which caused the arrow to fall out—walked down the alley where it laid itself down again, and did not get back up. Ponce's children were in the backyard and, after seeing the dog, became angry. Ponce's wife called 9–1–1.
Fort Worth Police Officer Nathan Owens was dispatched to the scene and found the wounded dog—whining, bleeding, and hurt—lying in the alley. The dog was a black and white, medium-sized Husky or shepherd mix that weighed about fifty pounds and had different colored eyes. Officer Owens observed a considerable amount of blood on the pavement and in the grass of the house next door to Ponce's house. Officer Owens explained that he called Animal Control when he arrived, but he cancelled his call to it when the Humane Society, whom someone else had called, arrived first. He crossed the street and knocked on the door of Appellant's house, but no one answered, and Appellant's Jeep was not at the house. Witnesses told him Appellant had gotten in his Jeep and left the area. Officer Owens estimated the Humane Society arrived within ten minutes after he did and provided medical assistance to the dog. Officer Owens did not recall any neighbors complaining about the dog being aggressive. He said people cannot act with cruelty towards animals just because they are strays.
Detective Ryan Stepp, with the Fort Worth Police Department's central criminal investigations unit, was assigned to the case the next day. Detective Stepp testified he reviewed the report and went to the scene to get his own perspective on it. He talked to witnesses, including Ponce and other neighbors, and viewed the bloodstains and a trail of blood from which he determined that the dog was shot in the driveway between Ponce's and Ponce's neighbor's houses and then went through the hole in the fence into Ponce's back yard.
Detective Stepp learned that the week before the dog was shot, Appellant had called in complaints on April 5 and April 6 to Animal Control about a large stray dog digging in flower beds and fighting with other dogs in the neighborhood. Appellant's complaints to Animal Control said nothing about the dog being aggressive towards Appellant or his wife. Detective Stepp went to Appellant's house and said “there [might] have been a few flower beds, but they looked like they had been kept up.” He said he knocked on the door but no one answered.
Detective Stepp spoke with Appellant's next door neighbor, N.P., who owned a compound bow and arrows, which Detective Stepp photographed, but no crossbow. Detective Stepp described a crossbow as more like a rifle with a bow set on top of it, whereas a compound bow was an actual bow with gears at the end that helped a person with the draw. A “fixed blade broadhead” bolt from a crossbow was found at the scene where the dog was shot and was introduced into evidence as State's Exhibit 35. Detective Stepp said his understanding was that a bolt was different from an arrow used with a compound bow in that a bolt was shorter than an arrow and a bolt did not necessarily have a nock at the end. He said a bolt from a crossbow was capable of killing someone or an animal, torturing an animal, or causing serious bodily injury.
Detective Stepp processed the bolt for DNA but not for fingerprints because it was covered in blood. The DNA results did not relate to Appellant.
Based upon his investigation, Detective Stepp concluded that Appellant shot the dog and that there was no evidence of justification as the dog was not aggressive or attacking anyone. He also spoke to Dr. Cynthia Jones of the Humane Society; she explained the severity of the wounds to him, and he concluded the wounds constituted serious bodily injury. He explained that in Texas it is a criminal offense to cause even a stray animal serious bodily injury unjustifiably. He wrote out an arrest warrant for Appellant for cruelty to animals.
Appellant's wife, Delia Swilley, testified that she and Appellant had lived at the residence across from Ponce's since 2007. Their home had been broken into six or seven years earlier, and they had reported stolen electronics to the police. Later, they learned that other things had been stolen as well, such as tools, speakers, and things Appellant was using in a church program. She testified that Appellant did not own a crossbow and that if he had one, she had never seen it. She denied that Appellant ever went hunting and denied that he had either blade or camouflage arrows for hunting.
*3 Appellant's wife testified she got home from work on the evening of the dog's injury at about 6:45 p.m. They both took showers, ate dinner, and watched television. She testified she did not hear an animal scream, did not hear a commotion of adults and children outside or across the street, did not hear the police arriving, and did not hear anyone knock on the front door or ring the doorbell. She had seen the dog around for some time in the neighborhood. The dog would lie down in front of her door and not move. She stated the dog never growled, bit, or jumped on her. It would just jump down, and that was what scared her. If she came out of the front door, it would move, but it would then go and “undo” the tulips. She denied knowing that the dog had been living across the street for four or five months or that it played with the children there, but she added that she was almost never at home. About two weeks before the dog was shot with the arrow, she had seen it playing in her yard and had asked Appellant if he knew that dog. She denied telling her husband to shoot the dog or to get rid of it because it was digging up her garden. She denied that Appellant left in his Jeep to go anywhere that night and said that the policeman lied if he said Appellant's Jeep was not there.
Appellant denied shooting the dog with a crossbow. He testified he had always had pets and had a mix that looked like “Benji” now. He denied wanting to hurt an animal. Regarding the photos of the dog, Appellant said, “[T]he pictures were horrific. I thought that was terrible.” He denied leaving the house in his Jeep at any time that evening. He insisted he was there all evening and heard nothing—not the dog's yelp, not the neighbors coming out to help the dog, not the commotion across the street, and not the police arriving, interviewing people in the street, and knocking at his door. Appellant explained that his house was further away and that he was probably taking a shower. Appellant denied not being there.
Appellant admitted he had at one time owned both a compound bow and a crossbow but said his crossbow had been stolen. He thought his house was burglarized around 2009. He reported to the police everything that was stolen. Detective Stepp confirmed that a burglary was reported in 2006 but said that the report made no mention of a crossbow. Appellant said it was only later, when going on a camping trip, that he discovered his crossbow had also been stolen. He said he called the police to report it but hung up when he determined it was pointless. Appellant admitted to Detective Stepp that he had owned a Horton crossbow and that the bolt in question that the dog was shot with was a Horton bolt. Appellant maintained, however, that his bolts had also been stolen, that they had only been target bolts, and that he had never owned bolts like the one used on the dog, which was an expensive fiberglass bolt. Appellant said State's Exhibit 35 was short enough to be a crossbow bolt and had a hunting tip. Appellant maintained he used only target bolts because targets were the only things for which he used the crossbow. Appellant said his bolts had bullet tips with mild points. Appellant denied ever owning a high-dollar fiberglass bolt with a hunting razor edge like the one on State's Exhibit 35. Appellant admitted hunting once in his life but denied ever hunting with a bow.
Appellant admitted calling Animal Control to complain about the Husky two days in a row the week before the dog was shot. Appellant also said that before the offense, he had called the police several times on Saturday nights because of loud parties at Ponce's home; Appellant explained that he had to get up early Sunday morning to go to church. Appellant suggested that Ponce shot the dog and, knowing Ponce's children would be upset with him if they found out, Ponce made up the story blaming Appellant. Appellant theorized that his complaints to the police about loud parties at Ponce's house gave Ponce a reason for revenge. Appellant even suspected that Ponce might have stolen his crossbow in the burglary six years earlier and shot the dog with it. Appellant had not mentioned his theory that Ponce stole the crossbow and shot the dog in his statement to Detective Stepp, and he admitted it “was just a thought that I had.” Appellant acknowledged Ponce and his family told the police that they saw him drive away after putting the crossbow in his Jeep.
The dog—when I first saw the dog, there was a lot of mud and a lot of blood on his chest and front legs. He was in good spirits. Difficulty walking a little bit on his front legs. He was not aggressive. He was hungry. He was fairly docile. I did not, when I first examined him, have to sedate him in any way. I had no difficulty trying to determine his injuries. During the shaving and cleaning process, I was given no trouble by him whatsoever.
She described four wounds that the dog received from the bolt and stated that, in her opinion, the only way for it to have received those four wounds in the way that it did was for it to have been lying down when it was shot. She added that the person who shot the dog had to have come from the side and was not facing the dog head on.
Dr. Jones then showed how the bolt “came through the leg and came out through the front of the chest” under the neck. The bolt then “glanced” across the chest deeply enough to cut through some of the muscle. State's exhibit 34 showed a gash about three-and-a-half-inches long and about a half-inch wide where the skin appears to have split apart. The bolt finished by entering the front part of the right leg and chipping the bone. Dr. Jones said she had to pull out three little pieces of bone.
Dr. Jones asserted the manner in which the dog was shot caused it unjustifiable pain and suffering and constituted illegal torture. She said that it suffered serious bodily injury and could have died without treatment.
Although the dog's injuries were no longer life-threatening when it was adopted a couple weeks later, Dr. Jones said the dog still had some muscle and limb pain in his front legs and still limped slightly. She said the dog had a protracted loss or impairment of his front legs. In her nearly twenty-eight years of veterinary medical practice, this was the first time she had seen an animal who had survived being shot by an arrow.
Because of the publicity about the dog's injuries, survival, and recovery from being shot with a crossbow, there were numerous applications for adoption. A couple fell in love with and adopted the dog while it was still recovering from its injuries. The dog's family now consisted of the couple, their three-month old daughter, and Jack, a Maltese. The dog's owner testified it did not show any aggression whatsoever. The owner said he had no problem with the dog at the dog park near their neighborhood. He said the dog was no longer in pain but still favored one side when it ran.
*5 In his first issue, Appellant contends the trial court abused its discretion by denying his motion for mistrial when a reference was made to an extraneous offense for which Appellant had been found not guilty.
A video recording of Detective Stepp's interview with Appellant was admitted without objection and played to the jury. About twenty minutes into the interview, Detective Stepp said, “You haven't been in trouble for a long time. I know your criminal history out of Georgia. I know your criminal history here.” Appellant did not object. About thirty minutes into the interview, Detective Stepp said, “I know you have been down this road before, okay, and I know you got away with it once already. I know that.” At this point, Appellant moved for a mistrial because the State had violated his motion in limine.
The State argues that any error is not preserved because the video was admitted without objection. We agree. Although Appellant complained that the State had violated his motion in limine, generally the granting or denial of a motion in limine is a preliminary ruling only and preserves nothing for appellate review. Geuder v. State, 115 S.W.3d 11, 14–15 (Tex.Crim.App.2003). A defendant must make a timely objection to preserve an error in the admission of evidence. Dinkins v. State, 894 S.W.2d 330, 355 (Tex.Crim.App.), cert. denied,516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995). A party should make an objection as soon as the ground of objection becomes apparent. Id. Generally this occurs when the evidence is admitted. Id. Consequently, if a question clearly calls for an objectionable response, the party should make the objection before the evidence is admitted. See id. If the party fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely, and the party waives any error.Id. At trial, Appellant acknowledged having access to the video for some time and having reviewed it. The trial court noted Appellant had not presented it with any motion to redact the video. A mistrial is not required on the basis of an unpreserved evidentiary complaint. See Glassey v. State, 117 S.W.3d 424, 432 (Tex.App.–Fort Worth 2003, no pet.)(holding that the appellant failed to preserve error because the evidence came in without objection during another witness's testimony).
*6 Notwithstanding the fact Appellant had not preserved error, the trial court, as noted above, nevertheless gave the jury an instruction to disregard. On appeal, Appellant attacks this instruction to disregard because it was not given immediately and served only to compound the error. See Rojas v. State, 986 S.W.2d 241, 250 (Tex.Crim.App.1998) (stating instruction to disregard must be given promptly); Hagood v. State, 104 Tex.Crim. 429, 284 S.W. 547, 547 (1925) (stating defendant, by objecting to instruction because it would only compound error, preserved error notwithstanding absence of corrective instruction). At trial, Appellant did not object to the instruction. Just the contrary, absent a mistrial, Appellant favored an instruction to disregard. We hold any error regarding the instruction to disregard was not preserved. Tex.R.App. P. 33.1(a). We hold the trial court did not err by denying Appellant's motion for mistrial or by giving the instruction to disregard and overrule Appellant's first issue.
In his second issue, Appellant contends the evidence is insufficient to support his conviction. He stresses the lack of fingerprint or other physical evidence tying him to the shooting. Appellant argues that Ponce was a biased witness and that even Ponce said he only saw Appellant walking with a crossbow.
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App.2014). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Dobbs, 434 S.W.3d at 170. The trier of fact is the sole judge of the weight and credibility of the evidence. SeeTex.Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434 S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010). Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.Crim.App.2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex.Crim.App.2013). We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Dobbs, 434 S.W.3d at 170.
The evidence showed Appellant had complained twice about the dog a week before the offense. Appellant acknowledged having owned a crossbow. Ponce saw Appellant with a crossbow only moments after the dog was shot with a bolt from a crossbow. The jury could have reasonably concluded Appellant was the person who shot the dog with a crossbow and could have reasonably disbelieved Appellant's testimony about the crossbow having been stolen and about his use of bolts other than the one that injured the dog. The jury further disbelieved Appellant's purely speculative theory that Ponce lied and accused Appellant in retaliation for Appellant having reported Ponce to the police earlier. It was the jury's prerogative to decide whom to believe. See Dobbs, 434 S.W.3d at 170. We may not substitute our judgment for that of the jury. See Isassi, 330 S.W.3d at 638. We hold the evidence was sufficient for a rational trier of fact to have found, beyond a reasonable doubt, that Appellant intentionally, knowingly, or recklessly tortured or in a cruel manner killed or caused serious bodily injury to an animal by shooting it with a crossbow. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Dobbs, 434 S.W.3d at 170. We overrule Appellant's second issue.
*7 Having overruled both of Appellant's issues, we affirm the trial court's judgment.
[FN 1] See Tex. R. App. P. 47.2(a).


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Robert F. Sweeney, Baltimore, Md., for appellants.
Richard Schifter, Washington, D.C., for appellees.
Appellees live on the grounds of the National Institutes of Health (NIH), a federal reservation or enclave located within the geographical boundaries of Montgomery County in the State of Maryland. In October 1968, the Permanent Board of Registry of Montgomery County announced that persons living on NIH grounds did not meet the residency requirement of Art. 1, § 1, of the Maryland Constitution. Accordingly, such persons were not qualified to vote in Maryland elections, and the names of those previously registered would be removed from the county's voter rolls. Appellees then instituted the present suit against the members of the Permanent Board, requesting that a three-judge Federal District Court be convened to enjoin as unconstitutional this application of the Maryland voter residency law.
After the District Court issued a temporary restraining order so that appellees who had previously registered could vote in the November 1968 general election, 1 the case was considered on the pleadings and stipulations of fact. The District Court issued the requested permanent injunction, holding that to deny appellees the right to vote was to deny them the equal protection of the laws. Cornman v. Dawson, 295 F.Supp. 654 (D.C.Md.1969). Thereafter, a motion by the present appellants to intervene as additional defendants was granted, and a direct apeal was prosecuted to this Court under 28 U.S.C. 1253. We noted probable jurisdiction, 396 U.S. 812, 90 S.Ct. 80, 24 L.Ed.2d 65 (1969), and we affirm.
Before that time, persons who resided on NIH grounds could register and vote in Montgomery County; they continued to do so, apparently without question, for another 15 years. In 1963, however, in a case involving residents of another federal enclave, Royer v. Board of Election Supervisors, 231 Md. 561, 191 A.2d 446, the Maryland Court of Appeals ruled that a resident of a federal reservation is not 'a resident of the State' within the meaning of that term in Art. 1, § 1, of the Maryland Constitution, the provision that governs voter qualifications.
It was the Royer decision that prompted the action of the election officials in the present case. Appellants rely heavily on it and urge simply that persons who live on NIH grounds are residents of the enclave, not residents of the State of Maryland. Maryland may, of course, require that 'all applicants for the vote actually fulfill the requirements of bona fide residence.' Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675 (1965). 'But if they are in fact residents, with the intention of making (the State) their home indefinitely, they, as all other qualified residents, have a right to an equal opportunity for political representation.' Id., at 94, 85 S.Ct. at 779.
What was said in Carrington, rejecting in another context a different artificial gloss on a residency requirement, is applicable here as well. Appellees clearly live within the geographical boundaries of the State of Maryland, and they are treated as state residents in the census and in determining congressional apportionment. They are not residents of Maryland only if the NIH grounds ceased to be a part of Maryland when the enclave was created. However, that 'fiction of a state within a state' was specifically rejected by this Court in Howard v. Commissioners of Louisville, 344 U.S. 624, 627, 73 S.Ct. 465, 467, 97 L.Ed. 617 (1953), and it cannot be resurrected here to deny appellees the right to vote.
Appellants argue that even if appellees are residents of Maryland, the State may constitutionally structure its election laws so as to deny them the right to vote. This Court has, of course, recognized that the States 'have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised.' Lassiter v. Northampton Election Board, 360 U.S. 45, 50, 79 S.Ct. 985, 989, 3 L.Ed.2d 1072 (1959). At the same time, however, there can be no doubt at this date that 'once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.' Harper v. Virginia Board of Elections, 383 U.S. 663, 665, 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169 (1966); see Williams v. Rhodes, 393 U.S. 23, 29, 89 S.Ct. 5, 9, 21 L.Ed.2d 24 (1968). Moreover, the right to vote, as the citizen's link to his laws and government, is protective of all fundamental rights and privileges. See Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886); Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 534, 11 L.Ed.2d 481 (1964). And before that right can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.
The sole interest or purpose asserted by appellants to justify the limitation on the vote in the present case is essentially to insure that only those citizens who are primarily or substantially interested in or affected by electoral decisions have a voice in making them. Without deciding the question, we have assumed that such an interest could be sufficiently compelling to justify limitations on the suffrage, at least with regard to some elections. See Kramer v. Union School District, 395 U.S. 621, 632, 89 S.Ct. 1886, 1892, 23 L.Ed.2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 704, 89 S.Ct. 1897, 1899, 23 L.Ed.2d 647 (1969). However, it is clear that such a claim cannot lightly be accepted. This Court has held that a State may not dilute a person's vote to give weight to other interests, see, e.g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and a lesser rule could hardly be applicable to a complete denial of the vote. See Kramer v. Union School District, supra, 395 U.S. at 626627, 89 S.Ct. at 1889. All too often, lack of a 'substantial interest' might mean no more than a different interest, and "(f)encing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.' Carrington v. Rash, supra, 380 U.S. at 94, 85 S.Ct. at 779.
According to appellants, NIH residents are substantially less interested in Maryland affairs than other residents of the State because the Constitution vests 'exclusive Legislation in all Cases whatsoever' over federal enclaves to Congress. Appellants cite decisions dating back to Opinion of the Justices, 42 Mass. 580 (1841), and Sinks v. Reese, 19 Ohio St. 306 (1870), denying enclave residents the right to vote on the ground that the State has no jurisdiction over them. 3 We need not consider, however, whether these early cases would meet the requirements of the Fourteenth Amendment, for the relationship between federal enclaves and the States in which they are located has changed considerably since they were decided. As the District Court noted, Congress has now permitted the States to extend important aspects of state powers over federal areas. While it is true that federal enclaves are still subject to exclusive federal jurisdiction and Congress could restrict as well as extend the powers of the States within their bounds, see Offutt Housing Co. v. Sarpy County, 351 U.S. 253, 76 S.Ct. 814, 100 L.Ed. 1151 (1956), whether appellees are sufficiently disinterested in electoral decisions that they may be denied the vote depends on their actual interest today, not on what it may be sometime in the future.
Appellants do not deny that there are numerous and vital ways in which NIH residents are affected by electoral decisions. Thus, if elected representatives enact new state criminal laws or sanctions or make changes in those presently in effect, the changes apply equally to persons on NIH grounds. Under the Federal Assimilative Crimes Act, 18 U.S.C. 13, 'acts not punishable by any enactment of Congress are punishable by the then effective laws of the State in which the enclave is situated.' United States v. Sharpnack, 355 U.S. 286, 287, 78 S.Ct. 291, 292, 2 L.Ed.2d 282 (1958). Further, appellees are as concerned with state spending and taxing decisions as other Maryland residents, for Congress has permitted the States to levy and collect their income, gasoline, sales, and use taxesthe major sources of state revenueson federal enclaves. See 4 U.S.C. 104110. State unemployment laws and workmen's compensation laws likewise apply to persons who live and work in federal areas. See 26 U.S.C. 3305(d); 40 U.S.C. 290. Appellees are required to register their automobiles in Maryland and obtain drivers' permits and license plates from the State; they are subject to the process and jurisdiction of State courts; they themselves can resort to those courts in divorce and child adoption proceedings; and they send their children to Maryland public schools.
All of these factors led the District Court to 'conclude that on balance the (appellees) are treated by the State of Maryland as state residents to such an extent that it is a violation of the Fourteenth Amendment for the State to deny them the right to vote.' 295 F.Supp., at 659. Appellants resist that conclusion, arguing that NIH residents do not pay the real property taxes that constitute a large part of the revenues for local school budgets. 4 However, Maryland does not purport to exclude from the polls all persons living on tax-exempt property, and it could not constitutionally do so. Cipriano v. City of Houma, supra; see Kramer v. Union School District, supra. Of the other differences asserted between Maryland residents who live on federal enclaves and those who do not, most are far more theoretical than real. 5 In any case, these differences, along with whatever others may exist, do not come close to establishing that degree of disinterest in electoral decisions that might justify a total exclusion from the franchise.
In their day-to-day affairs, residents of the NIH grounds are just as interested in and connected with electoral decisions as they were prior to 1953 when the area came under federal jurisdiction and as are their neighbors who live off the enclave. In nearly every election, federal, state, and local, for offices from the Presidency to the school board, and on the entire variety of other ballot propositions, appellees have a stake equal to that of other Maryland residents. As the District Court concluded, they are entitled under the Fourteenth Amendment to protect that stake by exercising the equal right to vote.
Of the 12 appellees, 10 were registered to vote in Maryland prior to the commencement of this suit. The other two had sought to register but were not allowed to because they lived on NIH grounds.
See Md.Ann.Code, Art. 96, § 34.
In addition to the Royer decision of the Maryland Court of Appeals, there are a number of other state court rulings to the same effect. See, e.g., Herken v. Glynn, 151 Kan. 855, 101 P.2d 946 (1940); Arledge v. Mabry, 52 N.M. 303, 197 P.2d 884 (1948); McMahon v. Polk, 10 S.D. 296, 73 N.W. 77 (1897); State ex rel. Lyle v. Willett, 117 Tenn. 334, 97 S.W. 299 (1906).
At the same time, however, there is a contrary line of recent state decisions granting enclave residents the right to vote. See Arapajolu v. McMenamin, 113 Cal.App.2d 824, 249 P.2d 318 (1952); Rothfels v. Southworth, 11 Utah 2d 169, 356 P.2d 612 (1960); Adams v. Londeree, 139 W.Va. 748, 83 S.E.2d 127 (1954).
Except for a lessee's interest in property leased from the United States, see 10 U.S.C. 2667(e), Congress has not provided that the States may apply their property taxes to federal enclaves. At the same time, all, or virtually all, enclave real property is owned by the United States and is otherwise exempt from state property taxes. To compensate for this exemption, Congress has provided that increased amounts of federal-aid-to-education funds be paid with respect to federal employees living on federal property. See 20 U.S.C. 236244, 631645.
Thus, if there were severance or personal property taxes applicable to residents of Montgomery County (which there are not), they could not be collected on the enclave. Similarly, appellees are exempt from service in the State's unorganized militia (which has apparently never been called up) and from compulsory education laws. Appellants state that a myriad of state regulatory and licensing provisions are not enforceable on the enclave, but no instance of a practical effect on appellees is cited. See also Chicago R.I. & Pacific R. Co. v. McGlinn, 114 U.S. 542, 5 S.Ct. 1005, 29 L.Ed. 270 (1885); Stewart & Co. v. Sadrakula, 309 U.S. 94, 60 S.Ct. 431, 84 L.Ed. 596 (1940).
Perhaps the most real of the differances is that crimes committed on NIH grounds where appellees live, while defined by state law, may only be prosecuted in federal court by federal authorities, whereas the same acts would be prosecuted by state authorities in state courts if they occurred off the enclave. If this difference lessens appellees' interest in state law enforcement and policy at all, it certainly does not do so substantially. All Maryland residents, including appellees, undoubtedly have an interest in state laws and how they are enforced throughout the entire State.

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