A "power of appointment" - what is that?
The Georgia Supreme Court recently handed down the case of Smith v. Ashford (full text below the break), in which it dealt with a testator's use of a "power of appointment."
In estate-planning parlance, a power of appointment is used when a benefit is given, together with a right (a "power," as it were) to decide who gets that benefit when the initial beneficiary dies. The possessor of that right has a "power of appointment."
In a common example, parents may leave their wealth in trust to a child, together with an unlimited power of appointment. The child draws benefits pursuant the trust during his lifetime and has the power to decide, in his own will, who will inherit his share of the trust when he dies.
Drafters of trusts governing large estates like to use powers of appointment when they trust the beneficiary (often their child) to decide who most deserves to receive the benefit of the trust years or decades into the future.
In Smith v. Ashford the Supreme Court interpreted a will in which the holder of a power of appointment sought to give the power itself to his wife. Without holding on the question of whether you can inherit a power of appointment itself (you can), the Court said that it didn't matter - the original power of appointment stated that it had to be exercised before its holder died. Since it was not so exercised, the power lapsed.
HOLDINGS: -The Court reversed that part of the probate court's decision finding that the deceased testator failed to exercise the testamentary power of appointment granted by the trust because the language of the Will was plain, unambiguous and capable of only one interpretation, namely: that the testator gave the widow a power of appointment over property contained in the trust; -The Court found that the testator's devise to the children was contingent upon the widow's failure to survive the testator or the widow's failure to exercise the purported power of appointment and since the first contingency was not met due to the testator dying first, the contingency of the widow's failure to exercise the power of appointment was satisfied due to that legal impossibility.
Jay Richard Smith (Smith) died testate on October 29, 2013, survived by his wife, Kathy Kristina Smith, appellant in this case, and the couple's two minor daughters. At the time of his death, Smith was the beneficiary of the Jay Richard Smith Irrevocable Trust (the “Trust”) established by his parents, the provisions of which granted Smith an unrestricted testamentary power of appointment of the Trust assets remaining after his death. Following Smith's death, appellant filed a petition to probate Smith's will dated September 5, 2013 (the “Will”) in Gwinnett County Probate Court. Thereafter, the probate court appointed appellant to serve as personal representative of Smith's estate and appellee, Dana C. Ashford, to serve as Guardian Ad Litem representing the interests of the minor children.
Appellant filed a Petition for Declaratory Judgment and Construction of a Will, seeking construction of the Will by the probate court and a declaration as to whether Smith, under the terms of the Will, exercised the testamentary power of appointment granted him by the Trust. Appellee filed a response on behalf of the children,  asserting that the language of the Will was clear and unambiguous, that no construction of the Will was necessary or appropriate, and that no justiciable controversy existed to support the declaratory relief sought. After reviewing the pleadings, motions, briefs and arguments of counsel, the probate court entered an order on February 2, 2015, finding that the Will was not ambiguous and that the court thus could not look beyond the four corners of the document to ascertain Smith's intent. Going further, the court decided that the plain language of the relevant provisions of the Will clearly and unambiguously showed Smith failed to exercise the testamentary power of appointment granted him by the Trust. Accordingly, the probate court ordered the Trust assets to be distributed pursuant to the terms of the Trust where no power of appointment had been exercised. Appellant appeals this order, and because we agree the language of the Will is unambiguous, but disagree with the probate court's determination that Smith failed to exercise his testamentary power of appointment therein, we affirm in part and reverse in part the probate court's order in this case.
Insofar as any part of [Smith's] trust shall not be effectively appointed, the Trustee shall distribute the remaining unappointed balance per stirpes in trusts to the descendants of [Smith].
[a] testamentary power of appointment granted under this Trust [to] be exercised by a Will, Living Trust or other written instrument specifically referring to the power of appointment.
(1) (1) We agree with the probate court that the language of Section 4.3 of the Will is plain, unambiguous and capable of only one interpretation. By its plain language, the first sentence of this section provides that, upon his death, Smith gives appellant a power of appointment over property contained in the trust.
HN1 (2) (2) “Under Georgia law, a power of appointment can be exercised only in the manner specified by the donor.” Hargrove v. Rich, 278 Ga. 561, 562 (604 SE2d 475) (2004). Here, the provisions of the Trust granted Smith an “unlimited and unrestricted general power to appoint all or any portion of the principal and undistributed income remaining in his trust at his death” and the “sole and exclusive right to exercise this general power of appointment” by a will “specifically referring to the power of appointment.” Thus, while Smith had the power to appoint the property remaining in the Trust at the time of his death, he did not have the authority to give this power of appointment to another. Instead, the trust donors specifically provided that in the event Smith failed to effectively appoint the trust property himself, upon his death the remaining unappointed balance would be distributed per stirpes in trusts to his descendants.
Citing OCGA § 53-4-55,3 appellant asserts that even though parol evidence is inadmissible to vary the unambiguous terms of a will, the circumstances surrounding a testator at the time  of execution of a will should always be considered by the court in interpreting the meaning of a will's provisions and that, in this case, parol evidence would establish Smith's intent to give her the trust assets via the will. This argument, however, misconstrues the statute which only applies after a determination has been made that an ambiguity exists requiring the will's construction. See Banner v. Vandeford, 293 Ga. 654, 655 (1) (748 SE2d 927) (2013) HN2 (3) (3) (“Courts are without authority to rewrite by construction an unambiguous will.”) (quoting Hungerford v. Trust Co. of Ga., 190 Ga. 387, 389 (9 SE2d 630) (1940)).
HN4 The cardinal rule in construing the provisions of a will is to determine the intent of the testator. See OCGA § 53-4-55; Banner, supra. It is well settled, however, that “there is no room for construction when the meaning of the words used in the will is so plain  and obvious that it cannot be misunderstood.” Erwin v. Smith, 95 Ga. 699 (22 SE 712) (1895). This is true even if the words used in the will express a meaning entirely at variance with the real intention of the testator. Id. See Banner, supra at 655. The plain and unambiguous terms of a will must control and “[p]arol evidence cannot be used to contradict or give new meaning to that which is expressed clearly in the will.” Reynolds v. Harrison, 278 Ga. 495, 498 (604 SE2d 184) (2004), citing Hall v. Beecher, 225 Ga. 354, 357 (168 SE2d 581) (1969). Thus, only where a will is ambiguous can the court apply the rules of construction and consider parol evidence of circumstances surrounding the testator at the time of execution of the will in order to ascertain the testator's intent. See OCGA § 53-4-56 (“In construing a will, the court may hear parol evidence of the circumstances surrounding the testator at the time of execution to explain all ambiguities, whether latent or patent.”).
2. Appellant additionally argues that the property described in Section 4.3 of the Will does not exist because Smith personally owned no interest in the referenced LLC. Appellant contends this alleged discrepancy creates a latent ambiguity in Section 4.3 of the Will which requires application of the rules of construction by the probate court. See OCGA § 53-4-56. Pointing to cases in which this Court has considered parol  evidence to correct misnamed or misidentified property and/or beneficiaries in a will, see, e.g., Dyess v. Brewton, 284 Ga. 583, 585 (669 SE2d 145) (2008)(will dated in May incorrectly referenced as “March will”); Legare v. Legare, 268 Ga. 474, 475 (490 SE2d 369) (1997) (will combined the names of two relatives despite indicating only one beneficiary), appellant asserts that the probate court's failure to find a latent ambiguity with respect to the property referred to in this section of the Will and its refusal to consider parol evidence constituted reversible error. We disagree.
In Section 4.3 of the Will, Smith describes the property over which he seeks to give appellant a power of appointment as “any real and personal property and other tangible assets that I benefit from under the Limited Liability Corporation created by my deceased parents … which is currently shared by me with my siblings.” As it is undisputed that Smith benefitted from the LLC's assets through the terms of the Trust, we find no ambiguity in this description. Moreover, appellant has failed to demonstrate how any ambiguity created by a mis-characterization of the property in the Will would create an ambiguity with respect to the issue of whether Smith, by purporting to give appellant the power of appointment over the  trust assets, properly exercised his testamentary power of appointment over those assets. Regardless of how the property is described in the Will, the language of the Will makes clear that Smith was not giving the property to appellant, but rather, was giving her a power of appointment over the property. See Oliver v. Henderson, 121 Ga. 836, 839 (49 SE 743) (1905) HN5 (4) (4) (“Parol evidence is not admissible to show that the testator meant one thing when he said another.”).
As stated, Smith's devise to his children is contingent upon appellant's failure to survive Smith or her failure to exercise the purported power of appointment. The first contingency has not been met because Smith predeceased appellant. The contingency of appellant's failure to exercise the power of appointment has been satisfied, however, because appellant has no authority to exercise the power of appointment Smith ineffectively bestowed upon her. Thus, the contingency of failure to exercise found in the  remainder clause is met by virtue of this legal impossibility. See generally OCGA § 44-6-42; Gresham v. Gannon, 243 Ga. 269 (253 SE2d 748) (1979) (following failure of charitable devise, disposition of estate was controlled by reversionary clause in will).
Next, we find that Smith effectively exercised the testamentary power of appointment granted him by the Trust to devise property in the Trust to his children. That is because the language of this section clearly and unambiguously provides that if appellant fails to exercise the power of appointment Smith sought to give her, then by “direct exercise of the power [of appointment]” Smith's children shall benefit from “this gift,” i.e., the property and assets Smith benefitted from under the LLC, which were held in the Trust. By directly exercising his sole and exclusive right to appoint the Trust's assets upon his death while referring to the power of appointment, Smith exercised his power of appointment in the manner specified by the Trust's donors. See Hargrove, supra at 562.
Based on these findings, we reverse that part of the probate court's decision finding Smith failed to exercise the testamentary power of appointment granted him by the Trust and requiring that the Trust assets be distributed pursuant to the terms  of the Trust where no power of appointment had been exercised. Instead, pursuant to the provisions of the Will, any real and personal property and other tangible assets that Smith benefitted from under the LLC which are held in the Trust must be distributed to the trustee of the J-K Smith Family Trust, identified in Article V of the Will, for the benefit of Smith's children. Accordingly, we remand this case to the probate court for the issuance of an order in conformity with this decision.


Readings & Resources | Art2Action Inc.
TAMPA — The University of Tampa`s College of Arts and Letters, Scarfone/Hartley Gallery and Department of Art and Design will be presenting Kaleidoscope: A Multidisciplinary Exhibition by Military Community Artists. Kaleidoscope is an exhibit featuring the artwork of active military and veterans from all branches of service. This beautifully broad exhibit embraces art in all forms, including painting, ceramics, blown glass, photography, digital storytelling, and a live performance opening night.
Co-presented and sponsored by the University of Tampa`s Scarfone/Hartley Gallery, the Florida Art Therapy Association (FATA), and Art2Action, Inc., this exhibit aims to bring service members, their families, art, creative therapies, and the local community together to honor, witness, and experience the power of art, its healing capabilities, and the resiliency of the human spirit. Curated by Saori Murphy, a visual artist and military veteran, the exhibition includes a variety of artists, including work by current UT student veterans. The exhibition runs from May 18 – June 2, 2018.
On May 18th, the Scarfone/Hartley Gallery, Art2Action and the concurrent FATA Symposium will host a series of opening events. Starting at 4 p.m., there will be an Artists’ Talk featuring five of the Kaleidoscope visual artists, including the curator, moderated by Art2Action Artistic Director, Andrea Assaf; followed by an Opening Reception at 5:30 p.m. in the lobby. At 7 p.m., a special performance of CHRYSALIS: A new Play about Veterans, Breaking Through, and the process of Becoming more Human, (an Art2Action production) will be presented in the Gallery, followed by a post-show dialogue with the performers—including professional artists and veteran community participants. Tickets for the performance will be $10 general admission / $5 for students and veterans/active military, and can be purchased at the gallery the day of the event (starting at 3 p.m.).
The Scarfone/Hartley gallery is located on campus at the R.K. Bailey Art Studios at 310 N. Blvd. Gallery hours are 10 a.m. to 4 p.m., Tuesday through Friday, and 1 to 4 p.m. Saturday. There is no charge for admission. For more information about these events, contact Jocelyn Boigenzahn, gallery director, at jboigenzahn@ut.edu or (813) 253-6217.
Florida Art Therapy Association`s mission is to advocate for expansion of access to professional art therapists and lead the state in the advancement of art therapy as a regulated mental health and human services profession. FATA provides information, resources, and meaningful networking opportunities to its members and the public.
Tampa, FL – In early February 2017, Art2Action, Americans for the Arts, and the University of South Florida (USF) will co-host the National Initiative for Arts & Health in the Military (NIAHM), 4th National Summit, focusing on the Role of the Arts in Recovery, Transition & Transformation. For the first time in the history of NIAHM’s National Summit convenings, the 2017 gathering will be held outside of Washington DC, and will include a festival of original performance works by, for, about and with Veterans, organized and curated by Art2Action. The ground-breaking R&R Arts Festival: From Recovery to Regeneration will place veterans’ stories—and the work of nationally acclaimed artists who create with them—at the center of an extraordinary cross-sector convening, bringing more than 200 military, veteran, and civilian practitioners, researchers, and policy makers together to share best practices, and help inform a nationwide vision for increasing access to the arts and creative arts therapies for all Veterans, as well as families and caregivers. The R&R Arts Festival is made possible by the generous support of the Doris Duke Charitable Foundation’s Fund for National Projects grant program. Art2Action received $95,625 from DDCF to support this unique national event. Additional partners include The Carpetbag Theatre, and New England Foundation for the Arts (NEFA) “Art in the Service of Understanding: New Perspectives from Artists and the Military Community” program.
Thursday, February 2 – Speed Killed My Cousin, an original play by Linda Parris-Bailey, about an African American woman soldier who returns from Iraq and struggles to understand her Post-traumatic stress, and her family’s history with vehicular suicide. Performed by The Carpetbag Theatre Inc., featuring Tampa’s own Andresia “Real” Moseley. 7:30 PM @ USF Theatre 1 (TAT), 3839 USF Holly Drive, Tampa, FL.
Friday, February 3 – Touch: The Love Concert, featuring special guests “The War & Treaty” led by Iraq war veteran turned singer-songwriter Michael Trotter, Jr., and the Touch iPad Band performing a new music composition based on stories of veterans in the Tampa Bay area, with local professional actors and USF students (directed by Dora Arreola, choreographed by Merry Lynn Morris). Proceeds benefit Military Service Outreach (MSO), helping veterans transition out of homelessness. 7:30 PM @ the USF School of Music Concert Hall (MUS), 3755 USF Holly Drive, Tampa, FL.
Saturday, February 4 – Re/Generate: Dance! A mixed-ability dance concert featuring excerpts of Healing Wars by MacArthur “genius” Award winner Liz Lerman; Exit 12 Dance, choreographed by veteran Roman Baca; Marine-turned-performance artist Makoto Hirano; wheelchair dancer Dwayne Scheuneman and more! 7:30 PM @ USF Theatre 1 (TAT), 3839 USF Holly Drive.
Sunday, February 5 – Veterans Community Open Mic, featuring special guests, the Miami-based Combat Hippies directed by Teo Castellanos, poet and playwright Maurice Decaul, Veteran Stand-up Comedians, local DJ Cotton, and more! FREE & open to the public. Free coffee/tea for Veterans! 5-8 PM at Tre Amici @ The Bunker, 1907 N 19th St (Ybor City), Tampa, FL.
Americans for the Arts is the nation’s leading nonprofit organization for advancing the arts and arts education, dedicated to representing and serving local communities and to creating opportunities for every American to participate in and appreciate all forms of the arts. With offices in Washington, DC, and New York City, it has a record of more than 55 years of service. Since 2011, Americans for the Arts has led the National Initiative for Arts & Health in the Military (NIAHM), a collaborative effort that seeks to advance the policy, practice, and quality use of the arts and creativity as tools for health in the military; raise visibility, understanding, and support of arts and health in the military; and make the arts as tools for health available to active duty military, military families, and veterans. Among NIAHM’s advisors, partners and collaborators include the American Legion Auxiliary, Department of Defense Office of Warrior Care Policy, the U.S. Dept. of Veterans Affairs, U.S. Veterans Health Administration, and NIH’s National Center of Complementary & Integrative Health, in addition to national, state and local arts, humanities, and veterans service nonprofits; state and local cultural agencies; and universities around the country.
Editor’s Note: In October 2016, Art2Action co-organized the pre-conference to the National Asian American Theatre Festival, produced by the Consortium of Asian American Theaters & Artists (CAATA), hosted for the first time by Oregon Shakespeare Festival (OSF). The pre-conference convened Middle Eastern, West & Central Asian American artists and allies for long weekend of dialogue and creative exchange, including a reading at the Portland Library, a panel at the University of Oregon organized by Dr. Michael Malek Najjar, a keynote address by Zeyba Rahman (archived on HowlRound), an OSF Green Show concert by Art2Action artists, an Open Mic at Hearsay Bar & Lounge, and a community workshop with Iraqi refugees beautifully faciliated by TeAda Productions. The pre-conference was made possible by the generous support of the Doris Duke Charitable Foundation and the Doris Duke Foundation for Islamic Art. We are grateful for this wonderful reflection by TeAda’s Shruti Purkayastha, below.
TeAda Productions has become such a home space for me. This was my first time entering the CAATA CONFEST space this year hosted by Oregon Shakespeare Festival. This was also my first time North of San Francisco, first time “touring” with Leilani and Ova, first time truly engaging with a national Asian-American Theater landscape, first time seeing performances on the famous OSF stages.
My first weekend, I supported the West Asian pre-conference, sharing with artists who identify with the working identities of “Middle Eastern/West & Central Asian American.” I met Andrea Assaf, of Art2Action and pre-conference coordinator briefly Friday night, and geared up to be open to whatever might come up for our weekend’s work with artists and community. In an effort to support vital conversations, I was honored to witness stories and visioning. What a gift to support a space for this group of people that is not centering a white European lens. Questions that struck me: What does it mean to approach our work around intersecting stories and issues? When is identity a tool for this, for raising our voices prouder and stronger, building the resilience of ourselves and our communities? How do we support each other cross-culturally, holding the broad national, gender, religious, artistic experiences and backgrounds.
I learned how many people do not always immediately identify as Middle Eastern– a term assigned to the region by the British Empire in the 1850s. To this day, the information we receive from news and media outlets in the US are terribly skewed, often depending on centuries old racism as shorthand in stories. Through the day-long sessions, and the evening open mic I had the honor of hosting, I learned about the amazingly diverse religions and spiritualities of the region. I learned about the risks Palestinian artists take to perform their truths, to the silencing sound of death threats at times. I heard stories of highly militarized regions, where it was normal to learn how to shoot a gun in elementary school, where resilience and art is grown in the midst of hearing about loved ones lost in bombings. I heard love stories and lullabies from grandmothers that reminded me of my own Bengali musical heritage. I witnessed the magic of bringing people with common experience together, some of whom had never had a space centering this identity. So much was shared, and when you are gifted stories, you offer something in return. I offered a Bengali folk song, honoring the Ganges river, a reminder of how water and land connect all of us.
On Sunday, we had the opportunity to connect with community members, recent Iraqi refugee-status immigrant families, bringing together people ages 10 months to senior with the magic of theater games and storytelling. We played together, celebrated over 12 languages in the room, shared in embodied images, and witnessed stories. A huge thanks to the several artists that stepped up to offer Arabic translation in solidarity, a first for a couple folks. The families left appreciating the sense of play, openness and new friendship. Mahalo and gratitude for the healing and rich storytelling work possible, and the listening deeper solidarity requires.
The rest of the trip is a blur– performing a song in another open mic, seeing 5 different shows of all Asian casts, attending breakout sessions, an action taking over a street to say no to White Supremacy, leading our own TeAda workshop sharing Masters of the Current and CreAtive Self-Care, supporting a post-show discussion for Eleven Reflections on September (remembering the high stakes and profound loss for refugee artists in the process), making new and deepening older ones. My last night was witnessing all generations of CAATA get down on the dance floor. Trust, nothing like this has ever happened in Ashland, Oregon before.
Present at this historic, unprecedented convening were representatives of Native communities from Alaska all the way to Panama. This is not to say that all Native communities were represented, nor that everyone who should have been there was there. But it was a good start, with space and time to discuss who was absent from the conversation and how to get us all together in the future.
…In the legacy of settler colonialism — which, by definition, never really ends — Native people have to disappear. They are a “‘present absence’ in the U.S. colonial imagination, an ‘absence’ that reinforces, at every turn, the conviction that Native peoples are indeed vanishing and the conquest of Native land is justified.”[ii] Being that blood was shed on the land upon which we stand…We should acknowledge Native communities wherever we live and work on this land.
When Andrea Assaf sent me an invitation to participate in the development of a “National Directing and Ensemble Creation Institute,” I was a bit surprised and honored. I thought it a great opportunity to learn and share with others and see what I could bring back to my organization. At Great Leap, we started our mentorship program, Collaboratory, to share our values and methodology around our 30th year. I thought this could help us. It was a challenge taking off full week from Great Leap, but it was worth it. Every day and every hour was packed full and there was no way to imagine how profoundly the deep exchange and thoughtful discourse with these incredible, artists/thinkers/directors would affect me.
On December 1, Saturday evening, our first gathering was a dinner at the home of Dipankar Mukerjee and Meena Natarajan. This warm welcoming of old friends and strangers with tasty Indian food set the tone for the days to come. We were in the well-organized hands and loving hearts of the Pangea World Theater and Art2Action.
We worked daily from 9am to 9pm, with breaks for lunch (often provided on site) and dinner, which were also filled with meetings discussions, and evening sessions. The main facility was Intermedia arts, which was nice because it allowed us to have stage space, plus meeting and lunch spaces. The hip artistic atmosphere and their branding phrase, “ART CHANGES EVERYTHING” was so fitting. A valuable part of our experience was working in Pangea’s studio in the evenings. It was filled with the vibration of their history, creative and spiritual energy.
I liked the balance between working on our feet and sit-down discussions. Most of the week was devoted to sharing of creative methodologies and discussions of values, history and curriculum development. There was also some Open Space time for us to share, collaborate or rehearse. On Thursday and Friday, a few hours were used to prepare a presentation. Ordinarily this could be chaos and pressure, but the expertise of the organizers and the artists in the room made it flow quite easily. We had much more material to share than we imagined. I think we filled 2 ½ hours, and the audience, which was mostly local artists, easily slipped into many of the exercises we shared.
The planning by Meena Natarajan, Dipankar Mukherjee and Andrea Assaf was excellent. Andrea did an amazing job facilitating and managing the agenda, plus herding us “mountain lions” (as Sharon Bridgforth lovingly called us). I believe we benefited from her experience researching other training institutes such as the Urban Bush Women Summer Leadership Institute and LaMama Umbria’s International Directors Symposium. She was firm, timely, but able to creatively accommodate, like my volunteering to lead the morning warm-ups so I could at least get in a little of my morning practice. This led to others sharing their warm-ups, giving us another opportunity to experience each other’s techniques. Pangea’s on-the-ground staff, starring Katie Herron-Robb handled logistics and details with amazing efficiency, enthusiasm and loving care. Their work was a reflection of the spirit, work ethic and principles that guide Pangea on a daily basis. You could feel this through Meena’s and Dipankar’s caring presence. Throughout the week, Dipankar’s humor, humility and brilliance, was our gentle anchor.
No time or space was wasted. I only wish that there had been an opportunity to see a little of what is going on in the Twin Cities. But the seven days of twelve hours was barely ample time to cover what we needed and wanted to share. This was compounded by the desire to get know each of the incredible artists/directors. Linda Parris-Bailey added an extra event with her Thursday evening potluck party, filled with food, spirits and videos of those who wanted to show their work. All of it was a rich and rare bonding experience for us.
On Sunday Morning, 9am, we jumped into our first working day. Openings are important. We started in a circle with an offering of song, sage and prayer by Sharon Day, of the Indigenous People’s Task Force. She is part of the Ojibwe nation from Minnesota. The ritual of asking for a blessing from those who came before gave us a sense of ‘place.’ It created the sacred space for the circle we were part of.
Our circle included a diverse group of artist/leaders, mostly women and people of color, who came from theater towns like Los Angeles, San Francisco, Manhattan and Minneapolis, but also from Anchorage, Vancouver, New Orleans, Knoxville, San Antonio, Tijuana, the Bronx and more. There were about 30 of us, including Pangea’s local artists and special guests. This number allowed us to sit in a circle and see and hear each other intimately. The wise choice of artists gave a taste of the breadth and depth of ethnic, cultural and regional distinctions that represented the Americas, as well as world cultures. We also came from different generations and genres, from roots in Civil Rights struggles to today’s Hip Hop generation. Each of us briefly told our story in the large story circle on that first day. I was touched by everyone’s personal journey and how their life profoundly changed when they found their voice as an artist. It was not just the story of a complex and changing America we were hearing. I felt the whole world was in this circle.
There were many subjects that we discussed in our seven days: Aesthetics, Rigor, Elements of Directing, Lineage, “Collaborator vs. Dictator” in the role of the director, to name a few. We also had wonderful directors/guests that brought different experiences of their work to us, including Laurie Carlos, Rick Shiomi, Marty Pottenger, Harry Waters and Sharon Bridgforth. We looked at different models of Institutes, comparing Urban Bush Woman, LaMama, Cornerstone and more. And of course, we discussed Curriculum Development. The emphasis in my report, is on the following areas: the exchange methodology process, where this work came from…and where it can go.
What is my work? What do I do? How can I serve your purpose too?
One of the exercises Linda Parris-Bailey of The Carpetbag Theatre brought into the circle was this repetitive chorus, chanted by the group, over which we each gave our responses to the questions. This simple form, which came through the Civil Rights Movement, illustrates so well how the art of song can lift the spirit and set the intention of serving the community in the midst of their struggle. It still rings in my head, not only because that’s what a catchy melody and rhyme can do, but because it captures the spirit of the kind of art making we are engaged in.
“What is our work?” Our work creates theater to give voice to stories and struggles that are often omitted, ignored, self-silenced and detoured by America’s mainstream culture-makers. As artists, writers, directors, actors, we facilitate the creative process in non-traditional, non-hierarchal ways. For instance, without a script, material for a play can emerge directly from workshops with communities like Somali or Cambodian immigrants, Native American or transgender youth, who might also end up on-stage as performers. The power one feels in telling a story that needs to be told, and told well, is electric–not only from the point of view of the storyteller, but for the audience, who may be fellow community members. It dissolves the mystique and division between artist and audience: we become two halves of the same circle.
“What do we do?” and how we do it was a major focus of our days together. It was a rare opportunity and great fun to participate, exchange, play and observe the techniques of other artists.
Each day, an hour of Morning Movement was shared by different artist/leaders. My warm-up, which uses breath to unite body/mind/spirit, led into a slow motion group dance that physically connected individuals with others in the group, like a moving mobile. This developed into a movement improvisation, with intermittent freezes to allow each individual to express his/her name in creative ways. I thought it a good way to introduce ourselves to each other. I was amazed, when later in the week, Kathy Randels’ warm-up felt almost like an extension of mine. She guided us in groups of 7 or 8 to move silently through the space without a leader, yet each could be a leader, deciding when to move or stop, to walk slowly or quickly. We were learning to move and think as one, as a unit. We were making instant and instinctive decisions to change rhythms, directions and interact with other groups. It was so simple, so basic, almost like the movement of cells…yet becoming more complex. Other warmups given by Alejandra Tobar-Alatriz went even deeper into personal cellular sensitivity; Suzy Messerole emphasized flow yoga; Charlotte Braithwaite’s warm up led to an exercise that had us swing our body, twisting right and left with strong rhythmical music (Public Enemy’s “Fight the Power”) for a lengthy period of time, almost leading us into trance. It reminded me of Sufi circular spinning, except we were repeating half circles.
Throughout the week there were several sessions to share approaches to mining stories, sharing our feelings…whether in a word, a sentence, a poem, a movement.
Steven Sapp of UNIVERSES, had each of us list of 20 significant life events, then chose one and create a Haiku about it. He put us into groups of 3 or 4 and we collaborated to create a piece connecting our individual Haiku. Some pieces were connected through movement, some transformed more musically. It was a wonderful way to compress and connect with other stories, which grew new meanings.
S.T. Shimi, of Jump Start Performance Company, gave us text to inspire a simple gesture, then develop it into a series of movements. She then had us collaborate in small groups to juxtapose our movements with others, growing the meanings of our assigned text.
Dipankar, early in the week, introduced Pangea’s practice of 2 minutes of silence with deep breathing. They do this in their office as well as in rehearsals. We adopted it and wove it through our days, and it was a valuable addition. Each time we came together for a new session, it brought us away from our chatter and into the present moment, to zero mind, to empty page, to empty stage…where we began anew.
Dora Arreola, of Mujeres en Ritual Danza-Teatro, beautifully expressed her philosophy and method of using objects to help people ‘see’ ways into story and build a movement vocabulary. This process has grown from her work with women in Tijuana, México.
Kathy Randels, of ArtSpot Productions, led us in a couples dancing exercise, to the accompaniment of a song we sang. This was a dip into New Orleans culture, and a fun lesson in following and leading. Breaking tradition in male and female roles was both provocative and hilarious.
Ed Bourgeois, of the Alaska Native Heritage Center, showed his Native style of theater/storytelling with a scripted story that still makes me laugh. Donning the voice and attire of an elder Native woman, he engaged volunteers that he then appointed as characters in his short play–a trickster bird, a tree, etc. It was clever and comical while sharing aspects of Native Alaskan people’s cultures…with the addition Ed’s humorous and sarcastic personality, which we enjoyed throughout the gathering.
– The Circle: Starting work in a circle is both symbolic and practical. It creates a sense of oneness, sacredness. Everyone has equal access. The circle is inclusive and can open to include more. For our purposes, as a practical learning circle, 30 was a good size.
– Creating Safe Space: The process of arriving at Agreements is an important part of creating a safe space. Some of ours were: be on time, active listening, no assumptions, speak honestly, all feelings are valid, step up/step back, respect yourself and others, it’s okay to have fun, take care of self, be generous, honor the process, share aspirations, it’s okay to disagree, mistakes are okay, oneness does not mean sameness, democracy is messy, acknowledge peoples of the land, and all ancestors are here. Non-judgment is one of the most important agreements.
– Inclusiveness: The beauty of these exercises is that they can engage and work with anyone. I’ve used similar techniques with youth and elders, with actors and community members. A few years ago, I was doing interfaith workshops at my Buddhist Temple using many similar techniques with people of different faiths. An older Japanese man, a temple member, wandered in and began watching. Somehow he was drawn into the group, began moving with us and shared his story with the others. After a while his wife came looking for him, and he slipped out of the group as easily as he slipped in. Amazing! These kinds of exercises allow a rare place for people to ‘play’ and explore their creativity while enjoying themselves.
– Encouraging Equal Voice: It’s easy for people who are more verbal to dominate conversations. Here is an opportunity to practice restraint. Methodologies that are more physical allow people who are less verbal, or don’t speak English or the dominant language well, to participate more equally. Sharing among peers can bring ghosts into the room or be a deeply revealing and healing process. Sharing across cultures can be bonding and grow respect, helping us see ourselves and the world differently.
– Developing Leadership: Built into many of the exercises is stepping into leadership. Movement with others, such as Kathy’s exercise, is a great way of practicing leadership in a physical, yet non-threatening way. We also learned to follow, or yield leadership–making choices that are artistically interesting or necessary to make things work for the group. This also demonstrates the relationship between individual and group. Our Western upbringing emphasizes the power and importance of the individual. Eastern culture emphasizes doing what’s best for one’s family, the group, the society. Both are necessary depending on the situation. Perhaps these practices expand the meaning of leadership into a non-dualistic way of being.
– Valuing Each Story: These techniques provide a safe place to tell our stories, share our feelings…whether in a word, a sentence, a poem, in movement or dialogue. To let our stories be heard, witnessed in a circle of compassion and non-judgment is powerful medicine. But hearing our stories in relation with others helps us see the bigger story we are part of.
– Everyone is Creative: Our work creates frames to tell our stories in creative ways. We are born of creativity, yet for most of us, conformity (not creativity) is encouraged. To be given a space to explore and experience our creativity changes how we walk, how we see, how we act in the world. Creativity is a practice that can be developed, no matter what our age.
– Process-oriented: Creating a ‘devised theater’ piece with each member part of its creation puts the emphasis on process, and may utilize multiple facilitators with different skills. This community-based practice, like democracy, is often a messy and chaotic. The roles of script writer and director are also being redefined by this kind of theater making. Devised process especially requires special skills, sensitivities and non-traditional approaches.
At the Institute, I wondered how this way of art-making popped up in so many places, in culturally unique yet similar ways. Somehow we’ve all been ‘making the road by walking.’ Our paths have been crossing, converging and merging and the road is getting wider, more substantial, yet elastic and alive, as artists are always dynamic and changing.
This art has roots. Whether old enough to be part of ‘the movement’ or not, these artists have been touched by the ideas of Civil Rights, Black Liberation, Chicano, Puerto Rican, Native, Asian American, and women’s LGBT movements. We’ve been influenced by Theater of the Oppressed, Grotowski and Athol Fugard; absorbed the sounds and cadences of Imamu Baraka, Sekou Sundiata and Tupac Shakur; breathed in the melodies and improvisations Miles Davis and Ravi Shankar; experienced the movements of Urban Bush Women, Butoh and Bharatanatyam. The philosophies and practices of yoga, Tai Chi, meditation and indigenous rituals using drum, fire, chanting and smoke are healing the colonized mind/body/spirit, returning us to the circle. We are dissolving the wall between artist and audience, exploring new ways of telling our stories…together. We have the ability to create community, villages within cities.
We are also part of a theater legacy that has helped birth theater of color in America. To name a few: In the mid-sixties in Los Angeles, C. Bernard Jackson’s Inner City Cultural Center, and in New York, Ellen Stewart’s LaMama, both created spaces that nurtured the work of Black artists as well as artists of color. In 1963 John O’Neal established The Free Southern Theater, as a cultural arm of the Civil Rights Movement, later founding Junebug Productions. Roberta Uno, in 1979, inspired as a teenager by Inner City Cultural Center, created New World Theater at University of Massachusetts in Amherst, to present and become an intersection for artists of color, as well as international artists. Since New World’s closure, perhaps the intersection has been shifted with Pangea World Theater in Minneapolis, the almost-center of North America, shouldering that role.
The idea of an Institute comes at a timely moment to share the values, philosophy and an expanding toolbox of methodologies with peers and younger artists. I hope it will inspire and train an army of artists to walk, dance, and find their way into more communities. An Institute will help our work be recognized as a distinctive ‘field’ vital to our changing society. As people of color become the majority in our country, we need to share our stories beyond our cultural boundaries to help overcome ignorance and fear of ‘the other.’ We need a way to go beyond ‘us and them,’ ‘win or lose’ dualistic thinking. We need to help instill new values and practice new ways of being within ourselves and with each other. As temperatures rise and the earth’s resources shrink, we need to engage communities in creative processes so we can experience our connectedness with each other and the Earth. And we need to dream…dream the kind of world we want to live in, realizing we are all part of the same circle.
Nobuko Miyamoto at the Pilot Intensive (photo by Luminous Concepts, 2012).


Recent filings in the criminal case against former congressman Aaron Schock (see my last post) brought to my attention that a number of pleadings in the Schock grand jury proceedings have been unsealed. Among these were two briefs filed by the House Counsel on behalf of the Bipartisan Legal Advisory Group (BLAG) as amicus curiae in support of Schock’s right to assert a Fifth Amendment act of production privilege in response to grand jury subpoenas for Schock’s congressional records.
The grand jury subpoenas in question seek documents from Schock’s “congressional office.” As used here, a “congressional office,” also sometimes referred to as the member’s “personal office,” means the offices that each member of the House maintains in Washington, D.C. and the congressional district for the conduct of official business as a representative from that district.
As we have discussed before, the House has long taken the position, for reasons unrelated to the Fifth Amendment, that such documents are the personal property of the individual member, not the property of the House itself or the U.S. government. Thus, these records are not archived under House Rule VII (as are documents such as committee records, which belong to the House and are periodically sent to the National Archives for archiving and eventual release to the public). Instead, upon a member’s departure from the House, the member is expected to take custody of her congressional office records or to arrange for their disposal (e.g., by having them destroyed, put in storage or donated to a university or other institution). See Declaration of Farar P. Elliott, Chief of the Office of Art and Archives (7-24-15).
A person may be compelled to produce documents even though the documents contain incriminating assertions of fact or belief because the creation of the documents was not compelled. United States v. Hubbell, 530 U.S. 27, 35 (2000); Fisher v. United States, 425 U.S. 391, 410 (1976) (“The taxpayer cannot avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of someone else”). Nonetheless, “the act of producing documents in response to a subpoena may have a compelled testimonial aspect.” Hubbell, 530 U.S. at 36. That is, by producing the documents, the witness admits that the papers exist, that the papers were in his possession or control, and that the papers are authentic. Whether a particular act is testimonial and self-incriminating is largely a factual issue to be decided in each case.
The act-of-production privilege does not, however, apply to collective entities, such as corporations. Consequently, an individual cannot rely on the Fifth Amendment privilege to avoid producing a collective entity’s records that are in his possession in a representative capacity, even if the records may incriminate him personally.
Opinion of June 25, 2015 at 14-16 (some citations omitted).
Thus, if documents from a member’s congressional office belonged to a collective entity, such as the House itself, or the U.S. government, or the “Office of Congressman X or Congressional District Y,” the act of production privilege would not apply, and a member could be compelled to produce such documents in response to a subpoena.
On the other hand, the converse is not necessarily true. The government argued that documents which of their essential nature are public or official records are not subject to the act of production privilege even if the House treats them for some purposes as the member’s personal property. Moreover, it contended that the “collective entity” doctrine was applicable because a congressional office, while it differs from a government agency or private corporation with respect to the ownership of documents, is still more like these collective entities than it is like a “sole proprietorship” or the home or business of a private individual.
Would the House’s Sovereign Immunity Position Bar its Suit against the President?
This is a question that should have, but didn’t, occur to me even as I sat through a good portion of yesterday’s House Rules Committee hearing, in which members and witnesses spent five hours arguing over when, if ever, it was permissible for one branch of the government to sue another. Professor Walter Dellinger testified that the federal courts could not and would not hear an action brought by the House against the president for failing to perform his duties under the laws and Constitution. Dellinger based his conclusion on the House’s lack of standing, but I did not hear him or anyone else raise sovereign immunity as an issue.
But yesterday the SEC also filed its reply brief in its subpoena enforcement action against the House Ways & Means Committee and, as I was reading it, the light bulb went on. If the House were correct in the sovereign immunity position taken in that case, its proposed lawsuit against President Obama would seem to be barred by its own position unless it could take advantage of a express waiver in existing law. It is not at all obvious that any such waiver exists.
Of course, the same could be said of lawsuits that the House has already filed. The SEC notes in its brief that courts “have not applied (let alone discussed) federal sovereign immunity in the myriad cases where one branch of government (sometimes Congress) acting in a sovereign capacity sues another branch of government (sometimes to enforce a subpoena).” In a footnote, it cites two House-initiated suits, Comm. on Oversight and Gov’t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013), and Comm. on Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008), which would have been barred by sovereign immunity if it were applicable. SEC Reply Br. 3 & n.1. In neither case, however, did any party or the court raise sovereign immunity as an issue.
The SEC’s position is that sovereign immunity is simply inapplicable to suits by one part of the federal sovereign against another. The fact that neither party can identify any case in which sovereign immunity was discussed in the context of inter-branch (or intra-branch) lawsuits cuts against the House’s position, not the SEC’s. The House, it argues, is seeking an extension of the sovereign immunity doctrine with no foundation in the case law. See SEC Reply Br. 4 (“While [the House] attack[s] the Commission for not identifying any cases in which a court has rejected such an extension, the Commission should not bear the burden of proving a negative.”).
In light of the consequences for any lawsuit against the president, maybe the House should hope the SEC is right.
The House Ways & Means Committee has filed its response to the SEC’s enforcement action (see here and here). The House’s brief sheds some, though not much, light on its argument that the doctrine of sovereign immunity bars the subpoenas in question.
The House relies primarily on a Second Circuit case, In re SEC ex rel Glotzer, 374 F.3d 184 (2d Cir. 2004), which held that “a party seeking judicial review of an agency’s non-compliance with a subpoena must first exhaust his or her administrative remedies pursuant to APA § 704.” Glotzer involved two subpoenas issued by a party (specifically Martha Stewart) in a federal civil lawsuit to (ironically) SEC attorneys. An SEC official considered the subpoenas in accordance with the agency regulations and determined that the attorneys should not be authorized to testify. Rather than seeking further agency review, as required by the regulations, Stewart sought direct judicial enforcement by the district court in which the civil case was pending.
The Second Circuit found that the district court lacked jurisdiction to enforce the subpoenas. It relied on circuit precedent establishing that a motion to compel an agency to comply with a subpoena implicates the doctrine of sovereign immunity and therefore such compulsion may take place only in accordance with the federal government’s waiver of sovereign immunity in the APA. Because the APA requires exhaustion of administrative remedies before judicial review may occur, the Second Circuit concluded that the jurisdictional pre-requisite for judicial review had not been met.
The House’s application of this decision is straightforward. The doctrine of sovereign immunity applies to Congress (several circuits have so held) and therefore subpoenas cannot be enforced against Congress absent a waiver. The APA does not apply to Congress and so does not waive its sovereign immunity. The SEC having identified no other valid waiver, the House argues, the subpoenas cannot be enforced, period. Notably, the House brief does not discuss the possibility that Rule VIII constitutes a waiver and, in fact, does not mention the rule at all.
It seems to me unlikely that the Second Circuit, which purported to be addressing a narrow question of first impression, would take its decision as far as the House would. The court mostly seemed concerned that a litigant not be able to circumvent an agency’s established procedures for responding to subpoenas. This is not an issue with Rule VIII, where the administrative procedures have already been exhausted. Moreover, the Second Circuit construed Stewart’s motion as one to compel the agency itself, rather than merely the subpoena recipients, see footnote 7, which may provide a ground for distinguishing two cases. In any event, nothing in the Glotzer decision suggests that the court expected it to have the far-reaching implications that are entailed by the House’s interpretation.
If the House were correct, it would mean that no subpoena, administrative or judicial, could be enforced against any legislative entity or a legislative official acting in an official capacity. It would seem, for example, that the grand jury subpoena to a Senate aide in Gravel v. United States, 408 U.S. 606 (1972), would have been barred by sovereign immunity. The same would be true, presumably, of the civil subpoena in Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C. Cir. 1995), as well as the subpoenas in many of the other Speech or Debate cases discussed in the House’s brief. None of these cases even discuss sovereign immunity, which, if a substantial jurisdictional question, should have been considered by the courts even if not raised by the parties.
There are other implications of the House’s position which are, to put it mildly, surprising. What about subpoenas to executive branch officials not covered by the APA, such as the criminal trial subpoena to President Nixon? See United States v. Nixon, 418 U.S. 683 (1974). For that matter, what about congressional subpoenas to executive branch officials? Are they barred by sovereign immunity as well?
Perhaps there is a limiting principle in the House’s brief that is not apparent to me. For the moment, lets just say that nothing has changed my deep skepticism about this argument.
As discussed in my last post, the SEC is suing the House Committee on Ways & Means and Brian Sutter, a committee staffer, to enforce two administrative subpoenas, one to the committee seeking documents and one to Sutter seeking both documents and testimony.
If I understand this objection correctly, it means that the House is asserting that the SEC is barred from compelling the production of official House documents or testimony related to the official functions of the House, even if that information is not constitutionally privileged and no matter how relevant it might be to the SEC’s investigation.
What might be the basis of such an objection? Well, during my time in the House Counsel’s office, we dealt with administrative subpoenas from several different federal agencies. We objected to these subpoenas based on the fact that House Rule VIII, which authorized compliance with subpoenas issued by courts, did not apply to administrative subpoenas. One aspect of this argument (I think) was that Rule VIII’s silence meant the House had not waived its sovereign immunity with regard to administrative subpoenas.
Be that as it may, in 1977 the House first adopted the predecessor to Rule VIII, providing standing authority to comply with judicial subpoenas. This rule obviated the need for the House to authorize compliance with such subpoenas on a case-by-case basis (which remains the practice in the Senate to this day). To the extent that the doctrine of sovereign immunity applies, the rule also presumably acts as a waiver of this defense so long as a subpoena meets the criteria set forth in the rule.
As noted, there remained a problem with respect to administrative subpoenas because Rule VIII did not address them. Thus, whether viewed as a question of sovereign immunity, separation of powers, or both, administrative subpoenas to the House were arguably barred and could not be complied with absent a specific House resolution authorizing compliance. (The merit of this position was never tested in court, to my recollection).
In the 107th Congress, however, Rule VIII was broadened to cover administrative subpoenas. This was done at the suggestion of the House Counsel’s office precisely because there seemed to be little sense from a policy standpoint (as well as some legal risk) in maintaining that administrative subpoenas were categorically barred.
Given that Rule VIII now expressly authorizes (and indeed requires, if the rule’s prerequisites are satisfied) compliance with administrative subpoenas, it is a little difficult to understand how the House could sustain a sovereign immunity objection. Perhaps a clue is the citation in the May 19 letter to Lane v. Pena, 518 187, 192 (1996), which it describes as holding “any waiver of sovereign immunity must be ‘unequivocally expressed in statutory text.’” Rule VIII, of course, is not a “statute” and thus, it might be argued, its language does not count for determining whether sovereign immunity has been waived.
If that’s the argument, it does not strike me as a winner.
Following his less than amicable separation from the CIA in 2002, Sterling approached the Senate Select Committee on Intelligence (SSCI) with information about Operation Merlin in March 2003. He met with SSCI staffers Don Stone and Vicki Divoll and told them that the program had not only been a failure, but may have assisted the Iranians in advancing their nuclear program.


text:
The display of peptides and proteins on the surfaces of bacteriophages is a powerful technique for the identification of specific ligands. Today, phage display technology is a well established method that has revolutionized our capability of selecting specific molecules. Phage display technology has enjoyed enormous success in recent years and has been used in countless studies. Alternative phage display systems utilizing bacteriophages such as λ, T4, and T7, which assemble in the host cytosol and are released via cell lysis, have now been developed. Recently, microbial cell surface displays for peptide library screening, bioadsorption, and live vaccine development have been reported. The filamentous bacteriophage M13 is the most popular and widely used display vehicle. The use of M13 vectors for the display of cDNA-encoded libraries is also not well established because of the lack of efficient C-terminal display in M13. Alternative systems based on large-genome phages, mainly T7, T4, and λ, have been used recently. The commercial availability of the T7 phage display system, optimized protocols, and ready-made libraries for selections has led to an increasing use of this system for a variety of studies. Apparently, HOC and SOC provide additional stability to T4 phage under adverse conditions such as extreme pH or osmotic shock. Lambda display has been used for epitope mapping of monoclonal antibodies against a large number of human and microbial proteins.
Schematic representation of the filamentous bacteriophage M13. The single-stranded circular DNA core is coated with five viral coat proteins. The schematic locations of the different proteins are shown. The gpVIII protein is present at about 2,700 copies, while gpIII, gpVI, gpVII, and gpIX are present at about 5 copies each. All of the coat proteins can be used as platforms for protein display. With the exception of gpIII, the capsid proteins are small, with 33 to 112 amino acids.
Arrangement of the bacteriophage lambda head proteins D and E. Both the D and E proteins are present at over 400 copies. The D protein serves as an efficient platform for display. Arrangements of the trimeric D protein surrounding the hexameric E protein are shown. The figure shows one face of the icosahedral head, with the vertices of the E pentamers. The three corners of the face are shown as triangles.
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23-906. Budget-making authority, how constituted; budget, when prepared; contents; notice of hearing.
In each county the finance committee of the county board shall constitute the budget-making authority unless the board, in its discretion, designates or appoints one of its own members or the county comptroller, the county manager, or other qualified person as the budget-making authority. If he or she will accept the appointment, another county official may be appointed as the budget-making authority. For the performance of this additional responsibility, the county official accepting the appointment may receive such additional salary as fixed by the county board.
On or before August 1, the budget-making authority shall prepare a county budget document, in the form required by sections 23-904 and 23-905, for the fiscal year and transmit the document to the county board.
A summary of the budget, in the form required by section 23-905, showing for each fund (1) the requirements, (2) the outstanding warrants, (3) the operating reserve to be maintained, (4) the cash on hand at the close of the preceding fiscal year, (5) the revenue from sources other than taxation, (6) the amount to be raised by taxation, and (7) the amount raised by taxation in the preceding fiscal year, together with a notice of a public hearing to be had with respect to the budget before the county board, shall be published once at least five days before the date of hearing in some legal newspaper published and of general circulation in the county or, if no such legal newspaper is published, in some legal newspaper of general circulation in the county.
Source:Laws 1937, c. 56, § 5, p. 226; Laws 1939, c. 24, § 3, p. 126; C.S.Supp.,1941, § 26-2105; R.S.1943, § 23-906; Laws 1945, c. 45, § 6, p. 215; Laws 1990, LB 874, § 1; Laws 1991, LB 178, § 1; Laws 2002, LB 1018, § 1.


529. The subjunctive in the clause of purpose is hortatory in origin, coming through a kind of indirect discourse construction (for which see § 592). Thus, mīsit lēgātōs quī dīcerent means he sent ambassadors who should say, i.e. who were directed to say; in the direct orders the verb would be dīcite, which would become dīcant in the indirect discourse of narrative (§ 588) or dīcerent in the past (cf. hortatory subjunctive in past tenses, § 439.b). The subjunctive with ut and nē is, in general, similar in origin.
530. A clause expressing purpose is called a Final Clause.
531. Final Clauses take the subjunctive introduced by ut (utī), negative nē (ut nē), or by a relative pronoun or adverb.
Pure clauses of purpose, with ut (utī) or nē (ut nē), express the purpose of the main verb in the form of a modifying clause.
They brought Cincinnatus from the plough that he might be dictator.
They halt in order to support their own men.
He barricaded the gates, in order that the soldiers might not break into the town.
He orders scaling ladders to be got ready, in order not to let slip any opportunity.
Note 1— Sometimes the conjunction has a correlative (ideō, idcircō, eō cōnsiliō, etc.) in the main clause (cf. § 56.a).
For this reason we are subject to the laws, that we may be free.
He led the troops across with this design—to storm the fort.
Note 2— Ut nōn sometimes occurs in clauses of purpose when nōn belongs to some particular word.
Relative clauses of purpose are introduced by the relative pronoun quī or a relative adverb (ubi, unde, quō, etc.). The antecedent is expressed or implied in the main clause.
Lucius Decidius Saxa is sent to examine the ground (who should examine, etc.).
He wrote speeches for other men to deliver.
that when he was dead there would be nobody from whom I could learn.
You have left him no ground even to make a stand against you.
Note— In this construction quī = ut is (etc.), ubi = ut ibi, and so on (§ 537.2).
a. The ablative quō ( = ut eō) is used as a conjunction in final clauses which contain a comparative.
He took advantage of liberty, that he might bluster with more impunity.
Note— Occasionally quō introduces a final clause that does not contain a comparative.
Lucius Sulla had treated the army luxuriously, in order to make it devoted to him.
For quōminus ( = ut eō minus) after verbs of hindering, see § 558.b.
532. The principal clause, on which a final clause depends, is often to be supplied from the context.
and, not to be tedious, we ordered, etc.
But, to return to the same point, this was the cause of fear.
It was the act of one rash enough, not to say daring.
Note 1— By a similar ellipsis the subjunctive is used with nēdum, sometimes nē (still less, not to mention that).
Far more will they hunt up at once some sort of crime and scandal.
Still less is it easy at sea and on a journey.
For prosperity overmasters the soul even of the wise; much less did they with their corrupt morals put any check on victory.
Note 2— With nēdum the verb itself is often omitted.
aptius hūmānitātī tuae quam tōta Peloponnēsus, nēdum Patrae (Fam. 7.28.1)fitter for your refinement than all Peloponnesus, to say nothing of Patræ.
For Substantive Clauses involving Purpose, see §§ 563 - 566.
a. The usual way of expressing purpose is by ut (negative nē), unless the purpose is closely connected with some one word, in which case a relative is more common.
They send envoys to Dumnorix, in order through his intercession to obtain (this favor) from the Sequani.
He sent the soldiers to follow up those who had fled.
Curio sends forward cavalry to withstand the first attack.
d. The future participle used to express purpose is a late construction of inferior authority (§ 499.2).
For the poetical Infinitive of Purpose, see § 460.c. For the present participle in a sense approaching that of purpose, see § 490.3.