Several news sources (WSJ.com and Dow Jones Newswire) reported on the $33.2 million default judgment obtained by Verizon Communications Inc. against OnLineNIC, Inc. for alleged cybersquatting. See Verizon California Inc. et al v. OnLineNic Inc., Case No. 08-cv-02832 (N.D. Cal.).
Verizon sued OnLineNIC for registering 663 domain names that were “identical to or confusingly similar to Verizon trademarks.” Verizon claimed that the registrations were done in order to steer traffic away from Verizon's sites.
The default judgment awarded Verizon $50,000 per domain name.
Verizon’s counsel associate general counsel Sarah Deutsch was quoted as saying “This case should send a clear message and serve to deter cybersquatters who continue to run businesses for the primary purpose of misleading consumers."
Or maybe it just sends a message that if you are sued, you should take the lawsuit seriously or else face the consequences of a default judgment and, in the cybersquatting context, the strong likelihood of the plaintiff electing to receive statutory damages under 15 U.S.C. § 1117(d) which can range from a minimum of $1000 to a maximum of $100,000 per domain name depending on what the court considers just, which apparently in the Verizon case was $50,000.
The third time will hopefully be a charm for Visa International Service Association (“Visa”), owner of the famed VISA mark, in its long running trademark dispute with JSL Corporation (“JSL”) over JSL's use of the mark eVISA.
On December 16, 2008, the U.S. District Court for the District of Nevada decided once again on summary judgment that JSL’s use of the eVISA mark was likely to cause dilution against the famed VISA mark. See Visa International Service Association v. JSL Corporation, Case No. 01-CV-00294, 2008 U.S. Dist. LEXIS 101399 (D. Nev. December 16, 2008).
The case has actually been decided in Visa's favor twice already -- both times on summary judgment. On October 22, 2002, the district court granted partial summary judgment in favor of Visa on its trademark dilution claim, finding that Visa had shown as a matter of law that JSL use of the EVISA mark likely diluted the VISA mark. On appeal by JSL, the Ninth Circuit on January 16, 2004 remanded the case back to the district court in order for the court to consider the impact of the U.S. Supreme Court’s decision in Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003), which held that to prevail on a dilution claim under the dilution law at the time (the Federal Trademark Dilution Act ("FTDA")), a plaintiff must establish actual dilution rather than a likelihood of dilution.
After the Ninth Circuit's remand, the Trademark Dilution Revision Act of 2006 ("TDRA") was subsequent signed into law on October 6, 2006. On remand, the district court applied the FTDA and again granted summary judgment to Visa on its trademark dilution claim on December 27, 2007. The court, following the Ninth Circuit’s instructions set forth in Jada Toys, Inc. v. Mattel, Inc., 496 F.3d 974 (9th Cir. 2007), applied the old dilution law rather than the new law because Visa had filed the lawsuit in 2001 before the FTDA was enacted. On February 1, 2008, Visa filed a motion for relief from a final judgment based on this court's "mistake" in applying the FTDA rather than the TDRA.
Before the district court could decide the motion, the Ninth Circuit, on February 21, 2008, amended the Jada Toys decision (previously blogged here) to apply the TDRA to a trademark dilution claim even though the plaintiff filed suit before the TDRA's enactment. See Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628 (9th Cir. 2008). The district court then informed the Ninth Circuit that it wished to entertain Visa’s motion for relief from a final judgment in light of the Ninth Circuit's amended Jada Toys decision and the Ninth Circuit remanded the case to allow this court to consider Plaintiff's motion for relief from a final judgment.
In the end, the court granted Visa’s motion for relief from a final judgment although it did so under Fed. R. Civ. P. 60(b)(5) (a party can challenge a final judgment if “it is based on an earlier judgment that has been reversed or vacated” or “applying it prospectively is no longer equitable”) instead of under Rule 60(b)(6) (for any other reason justifying relief from the operation of the judgment) which was the basis cited by Visa in its motion.
The court did not apply law of case to the fact of fame, but found once again under the TDRA that the VISA mark is famous. As for the TDRA’s requirement that a mark be distinctive, the court accepted its prior order finding the VISA mark to be arbitrary when used in connection with the goods and services provided by Visa. Regarding JSL’s use of the VISA mark in commerce, the court concluded that it had used a mark that was nearly identical to the protected mark – the same mark except for the JSL's addition of a letter 'e' as a prefix, which is commonly used to denote the online version of a business.
The court applied law of the case to the factor of JSL’s use after the mark became famous because the element is identical to the FTDA. Finally, the court applied the six nonexclusive factors set forth in 15 U.S.C. § 1125(c)(2)(B) that a court may consider in determining whether a trademark is likely to cause dilution by blurring and found that Visa had made an “exceptionally strong showing” on four of the six factors. The court concluded as a matter of law that JSL’s use of the EVISA mark is likely to cause dilution by blurring of Plaintiff's VISA mark, and amended its December 27, 2007 order accordingly.
Finally, the court, applying law of the case, granted the same injunctive relief that it previously ordered – namely enjoining JSL from using or registering the EVISA mark and from using the www.evisa.com domain name.
Bloomberg reports on the trademark infringement lawsuit filed by Anthony Iommi, co-founder and lead guitarist of the famed heavy metal band Black Sabbath, and Bluefame Ltd., the U.K. corporation that represents Iommi in his Black Sabbath trademark licensing, against Signatures Networks, Inc. (“Signatures”) and Live Nation, Inc., which purchased Signature in 2007. See Anthony Iommi et al v. Signatures Network Inc. et al, Case No. 1:08-cv-10904 (S.D.N.Y. December 16, 2008). A copy of the complaint can be downloaded here (courtesy of The Trademark Blog).
Iommi is the only remaining original member of the band formed in 1968 in Birmingham, United Kingdom, by Iommi, vocalist John “Ozzy” Osbourne, bassist Terence “Geezer” Butler and drummer Bill Ward. The original members left the band in the 1980s and each member relinquished all of his respective right, title, and interest in and to the Black Sabbath name, which left Iommi as the sole exclusive owner of the Black Sabbath name by 1985.
Bluefame first received a registration for the BLACK SABBATH mark in the United Kingdom in 1999, and subsequently assigned and transferred the registration to Iommi. On October 31, 2000, Iommi received a federal trademark registration from the United States Patent and Trademark Office for the word mark BLACK SABBATH for three classes of goods (phonograph records, compact discs and prerecorded audio tapes featuring music; clothing; and entertainment services, namely, live performances by a rock band).
In 1997, in connection with a Black Sabbath reunion tour, Iommi, through Bluefame, entered into a licensing agreement with Signatures to manufacture, distribute, and sell merchandise bearing the Black Sabbath trademark and Iommi’s image. The original term was through the end of 2000, but the term was extended to June 30, 2006 through three subsequent amendments.
According to the complaint, the parties attempted to negotiate a fourth amendment, but were unable to reach any agreement on extending the license. The negotiations apparently collapsed around the time when Live Nation purchased Signatures for $79 million in cash, stock and repayment of debt.
In April 2008, Iommi sent a letter to Signatures demanding that Signatures cease and desist from manufacturing, selling, and distributing all merchandise bearing the Black Sabbath mark and/or Iommi’s name or likeness. According to the complaint, Signatures has continued to manufacture, distribute, and sell a wide range of merchandise bearing the Black Sabbath trademark and Iommi’s image and likeness.
Iommi’s causes of action are for registered trademark infringement under 15 U.S.C. §1114, false designation of origin under 15 U.S.C. §1125(a), trademark dilution under 15 U.S.C. §1125(c), trademark infringement under New York law (N.Y. GEN. BUS. L. § 360-k), trademark dilution under New York law (N.Y. GEN. BUS. L. § 360-1), common law trademark infringement, and breach of Iommi’s right to privacy under New York law (N.Y. CIV. R. L. §§ 50-51) for the unauthorized use of Iommi’s name, image, and likeness.
Iommi seeks injunctive relief, damages, treble damages, costs, attorneys’ fees, and destruction of all infringing merchandise.
The lawsuit filed by Hasbro, Inc. against the makers of the widely popular Facebook game SCRABULOUS (previously blogged here and here) has been voluntarily dismissed by Hasbro. See Hasbro, Inc. v. RJ Softwares, Rajat Agarwalla, and Jayant Agarwalla, Case No. 08-cv-6567 (S.D.N.Y. July 23, 2008). News reports on the settlement can be found here, here, and here.
RJ Softwares has agreed not to use the term Scrabulous and has made changes to the Lexulous and Wordscraper games (in the U.S. and Canada) to distinguish them from the SCRABBLE crossword game. Based on these modifications Hasbro has agreed to withdraw the litigation filed against RJ Softwares in federal court in New York in July of this year. As modified, the Wordscraper application will continue to be available on Facebook and Lexulous will be available on the Lexulous.com website.
The Wordscraper game is similar to Scrabulous except that players could devise their own scrabble-type board rather than having a board with the “trademark” look of the original Scrabble board (shown above).
For those following the long running trademark infringement saga between Welding Services, Inc. (“WSI”) and Welding Technologies, inc. (“WTI”), the Eleventh Circuit decided last year that there was no likely confusion between the stylized WSI logo and the stylized WTI logo for welding services and affirmed the district court’s summary judgment in favor of WTI. A summary of the court’s decision can be read at Filewrapper®.
The case went back to the district court where WTI, the successful defendant, renewed its motion for attorney's fees under 15 U.S.C. § 1117(a) as the “prevailing party.” The district court awarded WTI $104,463.71 in fees and costs and WSI appealed.
The Court of Appeals, in an unpublished per curiam opinion, reversed and remanded the case back to the district court on the grounds that the court made a clear error in one of its findings and did not seem to have considered a declaration that was submitted. See Welding Services, Inc. v. Terry Forman, Appeal No. 08-13287 (11th Cir. December 2, 2008) (per curiam).
Since the district court applied the correct legal standard for determining if the case was exceptional, the Court reviewed the district court's award of attorney's fees for an abuse of discretion (i.e., clear error in the court’s findings of facts in its decision).
The district court found that WSI had an improper motive for bringing the infringement claim given that WSI had filed its complaint only after three former WSI employees acquired WTI even though WTI had actually been using the same mark for two years before the lawsuit was filed. The district court also found that WTI attempted to resolve the infringement issue without litigation by "volunteering" to change the allegedly infringing mark in its response to WSI's cease and desist letter. Finally, the district court found WSI’s trademark infringement claims to be “weak” and yet WSI “persisted with expensive, time-consuming litigation in spite of that.” Based on such findings, the district court awarded the fees and costs.
The Court also noted that the district court had not commented in its findings about a sworn declaration of a former WSI employee stating that WSI's chief executive officer told him that he intended to “sue WTI out of business.” The Court determined that the district court should make a credibility determination regarding the alleged statement and, if it finds that statement was made, should consider it in deciding whether WSI litigated with an improper motive.
Ron Coleman’s Likelihood of Confusion® beat me to the trademark blog punch with his analysis (link here) of the ex parte appeal filed by Chippendales USA, LLC -- the owner of the intellectual property behind the famed Chippendales dancers -- appealing the USPTO’s final refusal to register its “unique” apparel configuration (pictured below) as a trademark for "adult entertainment services, namely exotic dancing for women in the nature of live performances" on the basis that the trade dress is not inherently distinctive. See In re Chippendales USA, LLC, Serial No. 78666598 (the hearing of which is scheduled for Thursday, as reported by The TTABlog®).
What’s interesting about this pending application being appealed is that Chippendales actually already has one trademark registration on this particular trade dress – U.S. Trademark Registration No. 2,694,613 (for adult entertainment services, namely exotic dancing for women). That application was filed back in November 2000. After the PTO initially refused registration on the basis that the trade dress was not inherently distinctive, Chippendales amended the application to state Section 2(f) acquired distinctiveness as its basis for registration on the Principal Register (along with 400 pages of evidence). The PTO had no problem recognizing that the Chippendales trade dress had acquired distinctiveness.
Then in 2003 (about five months after the above application had registered), Chippendales filed a second application to register the same trade dress – only this time, Chippendales did not want to enter a Section 2(f) claim of acquired distinctiveness. One basis for the PTO’s refusal to register was that the application would result in a duplicate registration; however, Chippendales’ attorney explained that “the objective of this application is to have the Cuffs and Collar mark deemed inherently distinctive and registered on the Principal Register with no Section 2(f) claim.” This particular application was subsequently abandoned (for reasons not entirely clear although it may have had something to do with an untimely appeal) in favor of a third application filed in 2005 (the application which is subject to the aforementioned hearing).
TMEP 1301.02(c) provides for registration of a “three-dimensional costume design . . . for entertainment services.” In other words, clothes worn as a costume, not as “apparel” per se, are clearly amenable to protection as a trademark. The question appears to be whether a “configuration” of apparel such as that in the illustration constitutes a “costume” — i.e., whether the concept of using a costume to portray a particular character (Mickey Mouse, the San Diego Chicken) can be extended to a situation where, here, there is a concept, but not an identifiable, personal persona meant to be evoked.
Whether the applied-for mark is capable of creating a commercial impression distinct from the accompanying words.
Regarding the first factor, the PTO found that there is nothing unique or distinctive about a male dancer wearing cuffs and a bow tie and collar and that it is considered to be one of various ways for strippers and male entertainers to dress. As for the second factor, “The collar and cuffs are but one style of accouterments that are worn during the performance of a dance number or show. . . . This is practically an integral element of live acts, exotic dancing and strip tease performances in the world of entertainment and burlesque.” Regarding the third factor, the PTO noted that “Exotic dancers and striptease performers, particularly in the early days of burlesque, often began their routines in formal evening attire. . . . Though this particular form of dress may have been innovative, it was not source recognizing at the outset.” The fourth factor was inapplicable because no word mark was involved.
The test suggested by Chippendales as an alternative to the Seabrook test with respect to costume source indication is: 1) Is the costume used in a channel of trade where consumers are conditioned through their past experience to presume a source identification function? and 2) Is the costume immediately associated with an iconic larger than life character where the costume acts as an intrinsic symbol for the character?
Because the Chippendales "Cuffs & Collars" outfit has become so famous in connection with Chippendales, one can overlook the issue behind inherent distinctiveness -- namely, was the trade dress inherently distinctive when it was first adopted. The PTO maintains that despite the "iconic" status that Chippendales' trade dress may have presently reached, it did not have such status when the services first took place using the trade dress.


Petitioners moved to dismiss a federal indictment against them on the ground, inter alia, that the prosecution had violated Federal Rule of Criminal Procedure 6(e)(2)—which generally prohibits public disclosure by Government attorneys of "matters occurring before the grand jury"—by filing, in a separate criminal case, a memorandum disclosing matters before the grand jury in this case. After the District Court enied the motion, the Court of Appeals granted the Government's motion to dismiss petitioners' appeal for lack of jurisdiction on the ground that the District Court's order was not an immediately appealable "final decision" under 28 U.S.C. § 1291. The court rejected petitioners' contention that United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50, which held that an alleged violation of Rule 6(d) was rendered harmless beyond a reasonable doubt by a petit jury's guilty verdict, would render orders of this sort "effectively unreviewable on appeal from a final judgment," Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 and immediately appealable under the collateral order exception to the final judgment rule.
Held: A district court order denying a defendant's motion to dismiss an indictment for an alleged violation of Rule 6(e) is not immediately appealable under § 1291. Since petitioners have not yet been sentenced, the District Court's order is not a final judgment ending the litigation on the merits. Moreover, whatever view is taken of the scope of Mechanik (an issue not resolved here), an order such as that at issue does not satisfy the stringent requirements of the Coopers & Lybrand test. There is no merit in petitioners' contention that such orders are "effectively unreviewable" once trial has been held because they pertain to a right not merely not to be convicted, but a right not to be tried at all. Neither the text of Rule 6(e) nor the Grand Jury Clause of the Fifth Amendment affords a right not to be tried (in the sense relevant for the collateral order doctrine) in the event of a violation of grand jury secrecy. Pp. 798-802.
840 F.2d 1040 (CA2 1988), affirmed.
Richard James Braun for petitioners.
Lawrence S. Robbins for respondent.
Federal Rule of Criminal Procedure 6(e)(2) prohibits public disclosure by Government attorneys of "matters occurring before the grand jury" except in certain specified circumstances. This case presents the question whether a district court order denying a criminal defendant's motion to dismiss an indictment for an alleged violation of Rule 6(e) is immediately appealable.
* On January 23, 1987, a federal grand jury in the Western District of New York returned an indictment against petitioners Midland Asphalt Corporation, a business engaged in the sale of liquid bituminous material used to resurface roads, and Albert C. Litteer, Midland's president and part owner. The indictment alleged that they had violated § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1, by conspiring with other unindicted persons to allocate contracts and to submit collusive bids to the State of New York and certain counties in western New York. On July 21, 1987, petitioners moved to dismiss the indictment on grounds which included an alleged violation by federal prosecutors of Rule 6(e)(2).
Petitioners' Rule 6(e) allegations arose from the following facts: When the grand jury that ultimately returned the Sherman Act indictment was sitting, Midland and another company under investigation brought suit seeking to have the Government pay for the cost of compliance with grand jury subpoenas. In re Grand Jury Subpoenas to Midland Asphalt Corp. and Krantz Asphalt Co., Civ. No. 85-633E (WDNY, Feb. 12, 1985) (In re Grand Jury Subpoenas ). In that action Midland filed a motion asking that the District Court compel the Government to retain its rough and final notes of witness interviews. In response, the Government filed a memorandum in which it agreed to retain rough notes and final reports prepared by prosecutors and other Government personnel during its investigation of the western New York road-paving business. Approximately one year later, the defendants in a separate criminal case, also involving allegations of asphalt contract bid rigging in western New York State, United States v. Allegany Bitumens, Inc., Crim. No. 86-59C (WDNY, Apr. 14, 1986), filed a similar motion to require the Government to preserve its interview notes. Again the Government filed a memorandum agreeing to do so, noting that it had already made such a commitment to the District Court, and attaching a copy of its earlier memorandum in the In re Grand Jury Subpoenas case.
Petitioners' motion to dismiss the indictment in the present case alleged that the Government's filing, in Allegany Bitumens, of its memorandum from the In re Grand Jury Subpoenas case, publicly "disclose[d] matters occurring before the grand jury" in violation of Rule 6(e)(2). Specifically, the motion alleged that the memorandum disclosed the nature and focus of the investigation, the name of a grand jury witness, and the fact that the witness was to testify as an individual and not as a document custodian for Midland. Finding that the prosecution had not violated Rule 6(e)(2), the District Court denied petitioners' motion to dismiss the indictment.
On appeal in the Court of Appeals for the Second Circuit, the Government moved to dismiss for lack of jurisdiction, contending that the District Court's order declining to dismiss the indictment was not a "final decision" under 28 U.S.C. § 1291. Petitioners responded that this Court's decision in United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), in which we held that an alleged violation of Federal Rule of Criminal Procedure 6(d) was rendered harmless beyond a reasonable doubt by a petit jury's guilty verdict, would make district court orders denying motions to dismiss indictments based on alleged violations of Rule 6(e) "effectively unreviewable on appeal from a final judgment," Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978), and hence immediately appealable under the collateral order doctrine, see ibid. The Court of Appeals rejected petitioners' contention on the ground that Rule 6(d), the subsection at issue in Mechanik, exists primarily "to protect the person under investigation from being indicted in the absence of probable cause," 840 F.2d 1040, 1046 (1988), whereas Rule 6(e) serves the different function of "protect[ing] society's interest in keeping secret the identity of grand jury witnesses and persons under investigation," ibid. It concluded that "Mechanik [would not] preclud[e] a federal court of appeals from exercising post-trial review of an order denying a motion to dismiss an indictment for violation of Rule 6(e)," ibid., that denials of motions to dismiss indictments for alleged violations of Rule 6(e) are therefore not immediately appealable under the collateral order doctrine, and that the Government's motion to dismiss the appeal in the case before it should be granted.
We granted certiorari to resolve a disagreement among the Courts of Appeals.1 487 U.S. 1217, 108 S.Ct. 2869, 101 L.Ed.2d 905 (1988).
In the Judiciary Act of 1789, 1 Stat. 73, the First Congress established the principle that only "final judgments and decrees" of the federal district courts may be reviewed on appeal. Id., at 84. The statute has changed little since then: 28 U.S.C. § 1291 today provides that federal courts of appeals "shall have jurisdiction of appeals from all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court." For purposes of this provision, a final judgment is normally deemed not to have occurred "until there has been a decision by the District Court that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Van Cauwenberghe v. Biard, 486 U.S. 517, 521, 108 S.Ct. 1945, 1949, 100 L.Ed.2d 517 (1988), quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). In criminal cases, this prohibits appellate review until after conviction and imposition of sentence. Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 1054, 79 L.Ed.2d 288 (1984); Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937). Since petitioners have not yet even been tried, much less convicted or sentenced, it is plain that the District Court's order denying their motion to dismiss falls within this prohibition.
In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), we carved out a narrow exception to the normal application of the final judgment rule, which has come to be known as the collateral order doctrine. This exception considers as "final judgments," even though they do not "end the litigation on the merits," decisions "which finally determine claims of right separate from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate jurisdiction be deferred until the whole case is adjudicated." Id., at 546, 69 S.Ct., at 1225. To fall within the limited class of final collateral orders, an order must (1) "conclusively determine the disputed question," (2) "resolve an important issue completely separate from the merits of the action," and (3) "be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, supra, 437 U.S. at 468, 98 S.Ct., at 2458.
We have interpreted the collateral order exception "with the utmost strictness" in criminal cases. Flanagan, supra, 465 U.S. at 265, 104 S.Ct., at 1054. Although we have had numerous opportunities in the 40 years since Cohen to consider the appealability of prejudgment orders in criminal cases, we have found denials of only three types of motions to be immediately appealable: motions to reduce bail, Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951), motions to dismiss on double jeopardy grounds, Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), and motions to dismiss under the Speech or Debate Clause, Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979). These decisions, along with the far more numerous ones in which we have refused to permit interlocutory appeals, manifest the general rule that the third prong of the Coopers & Lybrand test is satisfied only where the order at issue involves "an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial." United States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 1552, 56 L.Ed.2d 18 (1978).
We have little difficulty concluding that an order denying a motion to dismiss an indictment for an alleged violation of Rule 6(e) does not satisfy our "stringent conditions for qualification as an immediately appealable collateral order." Flanagan, supra, 465 U.S. at 270, 104 S.Ct., at 1057. Whether a violation of Rule 6(e) will be reviewable on appeal following conviction, as the Court of Appeals below held, 840 F.2d, at 1046, or will be rendered harmless as a matter of law by the conviction, as the Ninth Circuit has decided, United States v. Benjamin, 812 F.2d 548, 553 (1987), a district court order declining to dismiss an indictment for an alleged violation of the Rule fails one or the other of the final two requirements set out in Coopers & Lybrand. If Mechanik is not extended beyond violations of Rule 6(d), and if Rule 6(e) violations can accordingly provide the basis for reversal of a conviction on appeal, it is obvious that they are not "effectively unreviewable on appeal from a final judgment." Coopers & Lybrand, 437 U.S., at 468, 98 S.Ct., at 2458. If, on the other hand, Mechanik is applied to bar postconviction review of alleged violations of Rule 6(e), it will be because the purpose of that Rule is the same as the purpose of Rule 6(d), namely, to "protec[t] against the danger that a defendant will be required to defend against a charge for which there is no probable cause to believe him guilty," Mechanik, 475 U.S., at 70, 106 S.Ct., at 941, which danger has demonstrably been avoided whenever there is a guilty verdict at trial. If this latter analysis is correct, however, orders denying motions to dismiss for Rule 6(e) violations cannot be said to "resolve an important issue completely separate from the merits of the action," Coopers & Lybrand, supra, 437 U.S. at 468, 98 S.Ct., at 2458, but rather involve "considerations enmeshed in the merits of the dispute," Van Cauwenberghe, supra, 486 U.S., at 528, 108 S.Ct., at 1952, and would "affect . . . or be affected by " the decision on the merits of the case, DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 657, 7 L.Ed.2d 614 (1962) (emphasis added). Thus, whatever view one takes of the scope of Mechanik (an issue we need not resolve here), the present order is not immediately appealable.
Petitioners attempt to avoid this reasoning by suggesting that orders of this sort, even if theoretically reviewable after conviction, are "effectively unreviewable," Coopers & Lybrand, supra, 437 U.S. at 468, 98 S.Ct., at 2458, once trial has been held, because they pertain to a right "the . . . practical value of which [is] destroyed if it [is] not vindicated before trial," MacDonald, supra, 435 U.S. at 860, 98 S.Ct., at 1552—namely, the right not merely not to be convicted, but not to be tried at all "on an indictment returned by a grand jury whose decision to indict was substantially influenced by the government's violation of 6(e)." Brief for Petitioner 24. We do not agree. It is true that deprivation of the right not to be tried satisfies the Coopers & Lybrand requirement of being "effectively unreviewable on appeal from a final judgment." See Abney v. United States, supra; Helstoski v. Meanor, supra. One must be careful, however, not to play word games with the concept of a "right not to be tried." In one sense, any legal rule can be said to give rise to a "right not to be tried" if failure to observe it requires the trial court to dismiss the indictment or terminate the trial. But that is assuredly not the sense relevant for purposes of the exception to the final judgment rule.
"Certainly, the fact that this Court has held dismissal of the indictment to be the proper remedy when the Sixth Amendment right to a speedy trial has been violated . . . does not mean that a defendant enjoys a 'right not to be tried' which must be safegu rded by interlocutory appellate review. Dismissal of the indictment is the proper sanction when a defendant has been granted immunity from prosecution, when his indictment is defective, or, usually, when the only evidence against him was seized in violation of the Fourth Amendment. Obviously, however, this has not led the Court to conclude that such defendants can pursue interlocutory appeals." MacDonald, supra, 435 U.S. at 860, n. 7, 98 S.Ct., at 1552, n. 7.
There is a "crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges." United States v. Hollywood Motor Car Co., 458 U.S. 263, 269, 102 S.Ct. 3081, 3085, 73 L.Ed.2d 754 (1982). A right not to be tried in the sense relevant to the Cohen exception rests upon an explicit statutory or constitutional guarantee that trial will not occur—as in the Double Jeopardy Clause ("nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb"), see Abney v. United States, supra, or the Speech or Debate Clause ("[F]or any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place"), see Helstoski v. Meanor, supra. Neither Rule 6(e) nor the Constitution affords such a guarantee in the event of a violation of grand jury secrecy.
The text of Rule 6(e) contains no hint that a governmental violation of its prescriptions gives rise to a right not to stand trial. To be sure, we held last Term in Bank of Nova Scotia v. United States, 487 U.S. 250, 263, 108 S.Ct. 2369, 2378, 101 L.Ed.2d 228 (1988), that a district court has authority in certain circumstances to dismiss an indictment for violations of Rule 6(e). But as just noted, that has nothing to do with a "right not to be tried" in the sense relevant here.
As for the Grand Jury Clause of the Fifth Amendment, that reads in relevant part as follows: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." That does indeed confer a right not to be tried (in the pertinent sense) when there is no grand jury indictment. Undoubtedly the common-law protections traditionally associated with the grand jury attach to the grand jury required by this provision—including the requisite secrecy of grand jury proceedings. But that is far from saying that every violation of those protections, like the lack of a grand jury indictment itself, gives rise to a right not to be tried. We have held that even the grand jury's violation of the defendant's right against self-incrimination does not trigger the Grand Jury Clause's "right not to be tried." Lawn v. United States, 355 U.S. 339, 349, 78 S.Ct. 311, 317, 2 L.Ed.2d 321 (1958). Only a defect so fundamental that it causes the grand jury no longer to be a grand jury, or the indictment no longer to be an indictment, gives rise to the constitutional right not to be tried. An isolated breach of the traditional secrecy requirements does not do so.
The Court of Appeals for the Ninth Circuit has read Mechanik to forbid postconviction review of alleged violations of Rule 6(e), and accordingly has held that district court orders denying motions to dismiss indictments for violations of the Rule are immediately appealable under the collateral order doctrine. United States v. Benjamin, 812 F.2d 548, 553 (1987). The Courts of Appeals for the Third, Tenth, and Eleventh Circuits have read Mechanik more narrowly to bar postconviction review only of "technical" violations of Rule 6, not violations calling into question the "fundamental fairness" of the criminal proceedings, and therefore have held that the latter type are not immediately appealable. United States v. Johns, 858 F.2d 154, 159-160 (CA3 1988); United States v. Taylor, 798 F.2d 1337, 1340 (CA10 1986); United States v. Kramer, 864 F.2d 99, 101 (CA11 1988). The First, Seventh, and District of olumbia Circuits have held that claims which may not be reviewed following conviction pursuant to Mechanik are insufficiently important to fit within the small class of claims eligible for interlocutory review. United States v. LaRouche Campaign, 829 F.2d 250, 253-254 (CA1 1987); United States v. Daniels, 848 F.2d 758, 760 (CA7 1988); United States v. Poindexter, 273 U.S.App.D.C. 240, 245-246, 859 F.2d 216, 221-222 (1988).


text:
Section 73A which has been inserted by the Finance Act, 2006, provides that service tax collected from any person has to be deposited with Central Government. The provisions ofsection 73A shall be applicable only when any excess amount has been collected as service tax from the service recipient. If such amount of service tax is collected which is in excess of service tax assessed or determined or paid on any taxable service, such amount is required to be deposited forthwith to the credit of the Central Government. 'Collection' precedes 'payment. Thus, if no amount of service tax is collected, section 73A is not applicable. Further, such amount should be in excess of service tax determined or assessed.
The literal meaning of 'forthwith' is immediately or without delay; as soon as reasonably can be, without unreasonable delay etc.
The dictionary meaning of 'forthwith' is "immediately, at once, without delay or interval." A typical instance of the use of the word cited in the dictionary is : "When a defendant is ordered to plead forthwith, he must plead within twenty-four hours." (Sk. Salim v. The State of West Bengal, 1975 (1) TMI 90 - Supreme Court of India). [See Shorter Oxford English Dictionary, Third Edition, Vol. I, p. 740]. The Interpretation of Statutes 12th Ed., pp. 10 I-I 02].
Where, however, the statute prescribes the payment of money and the accrual of interest thereon at certain points of time, the expression 'forthwith' must necessarily be understood to be immediate or instantaneous. so as to avoid any ambiguity or uncertainty.
The right accrues or liability arises exactly as prescribed by the statute. [Raymond Synthetics Ltd. v. Union of India, 1992 (2) TMI 269 - SUPREME COURT OF INDIA]. It means with all reasonable quickness and reasonable prompt time. [Rao Mahmood Ahmed Khan v. Ranbir Singh. 1995 (2) TMI 359 - SUPREME COURT].
However, the word 'forthwith' should not be construed as to mean "then and there" but means within reasonable time." (Basant Raj v. State, 1994 CrLR Raj 410).
There are a few cases in which "forthwith" has been held to be synonymous with 'immediately' but these are in contexts such as the performance of judicial actions where reasonably practicable would probably amount to the same thing in practice. See for example : R. v Francis, Ca t. Hard 115; Grace v. Clinch, 4 QB 606; R. v. Berkshire Justices 4 QBD 469.
The word "forthwith" must receive a reasonable construction, and in giving it a construction some regard must be had to the nature of the act or thing to be performed and the circumstances of the case.
Service tax having been collected has not been paid as provided in law.
Under sub-section (3), if the amount collected is not paid as required under sub-sections (1) or (2), Central Excise Officer shall serve a show cause notice on the person liable to pay service tax seeking show cause as to why the amount as specified in the show cause notice shall not be paid by him to the credit of the Central Government.
Once the SCN is issued to person liable to pay service tax, Central Excise Officer shall consider the representation or reply to SCN and determine the amount to be paid by him which shall not be more than the amount specified in the SCN. The person liable shall pay the amount so determined.
Against service tax payable by the person on finalization of assessment or any other proceeding for determination of service tax relating to taxable services.
refunded to person who had borne the incidence of such amount as per section 11B ofCentral Excise Act, 1944.
For refund, application u/s 11B of the Central Excise Act, 1944 shall be made within six months from the date of public notice issued by Central Excise Officer for refund of any surplus amount.

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


text:
1. By instructions in writing received from Shentons, solicitors, of Winchester, I am asked to advise on the issue of Citizenship of the European Union (hereinafter the EU) and a range of constitutional issues arising from the United Kingdom’s membership of the European Community (hereinafter the EC). My lay client is Sanity, a campaigning group which for perfectly proper reasons is opposed to UK ratification of the Treaty of Nice and UK membership of the EC. In particular the group seeks clarification of the opaque nature of EU Citizenship and advice on remedies. I propose first of all to set out some of the background by way of introduction, deal with the issue of Citizenship of the EU, remedies and then deal with the related constitutional points including State Trial by Bill of Attainder. Almost inevitably, since we are dealing with constitutional and international law, this opinion ventures into areas of political controversy. That goes with the territory.
2. Although various political philosophers have dreamt (or fantasised, depending on one’s point of view) about the destruction of Europe’s many nation states and their replacement by a new pan-European state, serious thought was not given to the subject until early in the Second World War, when the Germans were still contemplating victory. A method had to be found of bringing the Occupied Territories more closely into the German orbit after victory had been achieved, without permanently stationing large garrisons. The brief was given to the Reich Ministry of Economic Affairs, which came up the with the concept of the Europaische Wirtschaft Gemeinschaft, or European Economic Community, which essentially consisted of a single currency zone centred on the Reichsmark, a customs union with the economies of the Occupied Territories orientated towards Germany under strategic German direction and puppet governments administering nominally sovereign governments in the former Occupied Territories. These plans were refined after the war, and in much-modified form (inevitable given Germany’s defeat), with substantial French input, the EEC came about in 1957. Curiously, the original Nazi nomenclature was retained, albeit that the Nazi origination of both the name and broad concept of the EEC was not over-emphasised, doubtless for presentational reasons. As a victorious power, with a close relationship with the United States and the Commonwealth, Her Majesty’s Government, sensibly in the opinion of some, refused to have anything to do with it, although politically the way was cleared by the replacement of Sir Anthony Eden as Prime Minister and the unexpected death of the anti-EEC Leader of the Opposition, each being replaced by a leader more sympathetic to the EEC.
3. It seems clearly to have been understood by the politicians responsible for the Treaty of Rome that there was no popular support in Europe for a new state. The new body, although supranational with its own highly politicised civil service (the Commission) and court (the ECJ), came into being with an intergovernmental treaty, and the Member States remained sovereign. Each retained its own government, unique legal system, Head of State, armed forces, constitution, national flag and all the other indices of sovereignty. I am not aware of a single instance of a sovereign state declining to receive an Ambassador from or send one to an EC member state on the basis that it was no longer sovereign. The sovereignty of member states was recognised by the practice of non-EC states and the United Nations (UN), membership of which is limited to sovereign nation states (UN Charter, preamble and Articles 3 and 4). France for example retained membership of the Security Council after 1957, which she would have been obliged to give up had she surrendered her legal sovereignty.
4. This is not to discount the enormous practical, legal and governmental implications of membership, which involved the steady transfer of power and responsibility away from the member states. Amazingly not all of the member states amended their constitutions to take account of EC membership – Italy being the most spectacular example, given that the Italian Republic is the custodian of the treaty of Rome. Now it may be objected that the organs of the EC, especially the Commission, the ECJ and the ‘Parliament’ (strictly it is a consultative assembly and not a legislature) have federal ambitions and so they do, but there is a clear legal and practical distinction between ambition and achievement. The European State remains a dream (or a nightmare, depending on one’s point of view). It is not a legal or constitutional reality, a fact recognised by the European Commission and member governments at Nice. The very fact of convening an intergovernmental conference demonstrated the necessity of the consent of the member states. Signor Prodi is the President of the Commission. He is not the Head of State of the European Union, any more than Signor Mussolini was the Head of State of the Kingdom of Italy in the Fascist era. He may behave like a Head of State, with respect to him, but many people, even Prime Ministers, may behave like Heads of State without ever becoming one.
5. The ECJ very early on decided that the EC was sui generis. In Costa v. ENEL  ECR 585 and Van Gend en Loos  ECR 1 it surprisingly (with respect) managed to find that community law took priority over the legal systems of sovereign member states. These cases (and those which followed, including Simmenthal  ECR 629 and Factortame  1 AC 603) were each of them wrongly decided. As a matter of international treaty law such a startling conclusion, tending to subvert the democratic constitutions of the member states, required the plainest possible language in the Treaty of Rome. If the member states had wished to devalue their legal systems in this way they could have said so. Had they done so no doubt the treaty might not have come about, but that does not weaken the legal argument against the validity of the Costa principle, which whilst it is firmly accepted by the ECJ itself and other EC organs is not in fact accepted by all the member states, some of whose courts have rejected it – in particular the Federal German Constitutional Court in Brunner and the Danish Supreme Court in Carlson & Fischer & ors. (1999) 3 CMLR 854. As those instructing me may know the High Court will be invited in November in Thoburn & ors v. Sunderland City Council & ors to reject the doctrine here. In none of these decisions however did the ECJ go so far as to assert that the EC was a state, nor is there any basis in community law for such an assertion, which would amount to a direct attack on the sovereignty of the member states in flagrant violation of international law, arguably amounting to a crime against peace. Indeed, as the Defence have asserted in the Thoburn case, it is strongly arguable that the Costa doctrine is in breach of the jus cogens right of the member states to self-determination and freedom from interference in their internal affairs. The difficulty arises from the incremental method of creating a federal state – whilst it allowed for federalisation by stealth and got around the problem of lack of popular consent, it left the member states, including the United Kingdom, intact and able to exercise all the rights of a nation state. As the EU declines in popularity it becomes less risky and hence more likely for politicians to find the political will to stand up for the rights of nation states against the central institutions of the EU, creating a dangerous potential for conflict. No democratic constitution has yet been destroyed anywhere without a collapse in popular support. The task of destroying the member states and creating a new one is by no means as straightforward as the draftsmen of the Rome Treaty may have believed.
6. A constitutional lawyer confronted in say 1973 with the question of whether the EC was a sovereign state and whether the UK or other member states retained sovereignty might well have advised that the ultimate test would come with war. If the EC were a state then under international law and the laws of war an organised armed attack on any part of its territory by the armed forces of another state would amount to an act of war. If sovereignty resided in the member states (I do not take seriously the notion of shared sovereignty, which is a contradiction in terms and merely a piece of spin – either a state is sovereign or it is not) then only the state attacked would be at war and subject only to mutual assistance agreements (such as the North Atlantic Treaty) or guarantees of neutrality the other member states would remain neutral. Now a politician might have replied in 1973 that war was unlikely, but it is the fate of politicians to repeat past mistakes. Weakness in the face of aggression and ill-advised defence cuts had arguably made the Second World War inevitable. Serious retrenchment in our Armed Forces in the 1970’s and early 1980’s, including the scrapping of our last big gun cruisers and fleet aircraft carriers seriously reduced the Royal Navy’s deepwater capability. The RAF’s long-range bombing capability was reduced at the same time, giving inevitable encouragement to potential aggressors to attack our remaining colonial possessions. Unsurprisingly, in April 1982, the Falkland Islands were invaded and the UK again found itself at war. No war was actually declared, although since very few wars are started in that gentlemanly way that is quite irrelevant in determining whether a state of war existed. Very plainly it did. What happened?
7. The short answer is that without objection from the EC the UK conducted the war as a Sovereign State, without reference to EC organs or the other member states, who retained neutral status throughout (all that is except France which arguably committed a most serious violation of neutrality by permitting the passage of an enemy special forces team tasked with attacking shipping in Gibraltar, the team only being exposed after the successful attack on the ARA General Belgrano foreshadowed Argentina’s defeat). None of what happened in 1982 can remotely be reconciled with a theory of EC sovereignty. Parliament was recalled and very splendidly a Task Force was despatched to recover the islands, which after a short but magnificent campaign it duly did. It is doubtful that the ships of the Task Force possessed an EC flag between them. Certainly none could have been flown without risk of confusion and a breach of the Hague Rules governing naval warfare, and the EC’s role was limited to some fairly ineffectual sanctions. None of the other member states treated the attack on the Falklands as an attack upon itself, the operation was entirely British controlled and conducted and very properly the War Cabinet did not refer any question concerning the conduct of hostilities to Brussels. In a federal state none of this could have happened, any more than Arkansas could have remained neutral after the Japanese attack on Pearl Harbour. An attack on Oahu, being an attack on US territory, was in law an attack on every one of the United States, even though Hawaii was not then a state.
8. In the result the UK’s membership of the EC made no material difference to the conduct or outcome of the war, and no state in the world, including the enemy, treated any other member state of the EC as a belligerent power. In the premises it is quite impossible to argue that the UK was not a sovereign state in 1982, which post-dated EEC accession by a decade, nor is it possible to argue that subsequent intergovernmental treaties, none of which purported to alter that position, transformed the EC into a state, albeit that they may have represented steps along the way. This also applies to the Treaty of Nice, which leaves the fundamental nature of the EC unaltered. If brought into force the Treaty would involve a huge transfer of power to the centre, but it does not purport to abolish the nation states and still assumes that any further changes to the Treaty of Rome would require either unanimous agreement at an intergovernmental conference or changes by majority vote (itself a very dangerous procedure for any nation state ever to agree to) in accordance with treaty provisions. The supposed irreversibility of the Treaty changes is immaterial – the fact that the Treaty of Rome makes no provision for withdrawal does not exclude withdrawal in accordance with the Vienna Convention or general international law. Even the prosecution in the Thoburn case do not argue that the UK could not withdraw or indeed over-ride any community law provision expressly by Act of Parliament. Nothing that has happened since 1972 is irreversible so far as the UK is concerned – we can withdraw from the EC at will. A bill to repeal the European Communities Act 1972 would not be a particularly complicated piece of legislation, provided it contained transitional provisions and allowed ministers to replace EC directives and regulations implementing them over say a two year period.
9. It is impossible to refer to the Treaty of Nice in this context without commenting adversely on the wholly improper decision of the British Government to proceed with ratification following its rejection by the Republic of Ireland. As a matter of comity and international law (see eg the Declaration of Principles of International Law of 1970) a state should refrain from interfering in the internal affairs of another sovereign state and in particular should not interfere in its democratic process. A multilateral treaty requiring ratification by all parties (it is possible for a treaty to enter into force on ratification by a specified number of signatories – the treaty establishing the International Criminal Court is one such – but it does not bind those parties which fail to ratify) fails on rejection by a state party. That is this case. It is quite wrong for the other state parties to proceed because to do so is to put pressure on the rejecting state. The Treaty of Nice has failed and it is a nonsense for ministers to put a failed treaty before Parliament for ratification. I am asked to advise on how Treaty might be rejected. The answer is in the House of Lords, which as a matter of constitutional law is not in the least bound to give its consent to a breach of comity with the Republic of Ireland. Nothing in the governing party’s manifesto guys the House of Lords, because the manifesto was published before Ireland’s rejection of the Nice Treaty, the General Election was held on the same day as the Irish referendum on the matter and no-one could seriously claim that the electorate had given the government a mandate to pressurise the Irish electorate in a manner quite contrary to international law and established principles governing friendly relations between democratic states.
10. Under the Treaty of Maastricht the EC was given legal personality, and it is proposed to give the EU legal personality, but legal personality, whilst it is a requirement of statehood is not conclusive of it. All states have legal personality but every body with legal personality is not a state. The International Tin Council had legal personality but that did not make it a state. Blackpool Corporation has legal personality but that does not make Blackpool a state, or entitle the Corporation to set up immigration control at the Blackpool frontier, or the Mayor to expect a seat in the UN General Assembly.
11. Citizenship can only be of a State (see generally the treatment in Fransman, British Nationality Law, 2nd ed). Citizenship is to be distinguished from residence, even settled residence (it is possible for foreign and Commonwealth nationals to have lawful permanent residence in the UK without acquiring citizenship), domicile and leave to enter a particular state. In each case citizenship must be of a state, with an identified sovereign. In the case of British Citizens that sovereign is Our Liege Sovereign Lady. For the purposes of nationality law the term British subject is not used for British Citizens, but altering the terminology does not alter the relationship between subject and Sovereign. Queen Elizabeth II is still our Queen and Head of State and we are still Her Subjects, owing allegiance to Her and no other. Dual nationals may owe allegiance to another sovereign, but not on British soil.
12. It would be a nonsense for anyone to suggest that we are bound by allegiance to the European Union, or that ‘Citizenship of the European Union’ is anything other than a meaningless political concept, as vacuous as ‘Citizen of the World.’ Since there is no state called the European Union it can have no citizens. There are no duties owed to the EU save those imposed by community law and they are only imposed to the extent that they are adopted in accordance with the laws and constitutions of each sovereign state which is a member for the time being of the European Union. It may be complained that some treaty provisions are self-executing and so they are, but only where they do not conflict with the legal order of the member state concerned, as the Danish and German courts have held.
13. This is not to deny the dangerous misunderstandings that can arise where a supranational body such as the EU summons the conceit to refer to citizens of sovereign states as EU Citizens and where treaties refer to “rights” and “duties.” As a matter of community law the “rights” attaching to EU citizenship can only be the largely worthless “rights “ spelt out in Article 17, which are either symbolic or add nothing to existing community law. The almost useless “right” of seeking assistance from the consular authorities of other member states is a case in point. Assuming an official could be found who was willing to help (and I am not aware of any occasion since the Treaty of Maastricht came into force where meaningful diplomatic assistance was rendered to nationals of other member states) the authorities of the host state would be perfectly entitled to object. A British Citizen in jail in Texas could not just send for the French consul – the United States is not a party to nor is bound by the Treaty on European Union and the proper authorities of the State of Texas both could and should refuse to permit such a farcical exercise.
14. I see from the correspondence enclosed with my instructions that the Home Office and the Passport Office are of the same view. As a matter of law the Director of Operations of the United Kingdom Passport Agency is correct with respect when he states as he does in his letter of 9th August 2000 to a Director of Charles Robertson (Developments) Ltd that “there is no such thing as an EU citizen” and the “citizens of each member state retain their own national identity.” He is also right with respect in his letter dated 24th January 2001 to state that Article 17 of the Treaty of Rome as amended confirms that national citizenship remains in place.
15. Further support for this view is to be found in the decision of the European Court of Justice in its ruling in R v. Secretary of State for the Home Department ex p. Manjit Kaur (C-192/99), on a reference by Lightman J. from the Queens Bench Division. Mrs. Kaur did not have a close connection with the UK and was a British Overseas Citizen as defined by the British Nationality Act 1981. This did not give the right to live and work in the UK, but notwithstanding this she entered the country in 1990 on a temporary basis, failing to return at the conclusion of her limited stay. Eventually her lawyers argued that she was entitled to permanent residence on the basis of EU Citizenship. In order to do this they had to challenge the unilateral British declaration on the scope of British nationality for EU purposes made in 1972 and amended in 1982. As the ECJ confirmed these were important for the EU member states because in theory the UK government in 1972 might have equated British nationality with British Subject status and thereby entitled every Commonwealth Citizen to enter the EU as a matter of community law. The ECJ confirmed that Mrs Kaur was not a Citizen of the European Union and that nationality remained a matter for the member states, confirming its earlier ruling in Micheletti & ors (C-369/99).
16. This ruling was quite incompatible with any concept of Citizenship of the European Union equating with citizenship of a state. Had the ruling gone the other way it might have undermined the Danish ratification of the Maastricht Treaty. My lay clients will recall the political crisis created by Denmark’s initial rejection of the Maastricht Treaty in a popular referendum. Among Danish concerns was the very issue on which I am advising. The Heads of State and of Government of the European Community met at Edinburgh agreed that CEU did not “in any way take the place of national citizenship.” The Declaration goes on to confirm that nationality of Member States was entirely a matter for the Member States concerned. I have access not only to the final declaration but also to some of the travaux, in particular the amendment proposed by the Danish delegation. The Danish demands were agreed without material alteration.
17. As a matter of international law a state may enter a reservation prior to ratification of an international treaty. In a multilateral treaty such a reservation may either be incorporated (usually as a protocol) in the text of the treaty itself (treaties are read as one with their protocols) or in a separate document delivered to the other contracting parties. The Danish position on citizenship was communicated to every High Contracting Party to the Treaty of Maastricht, confirming in terms that Her Majesty the Queen of Denmark was not prepared to ratify the Treaty if CEU was to be other than a political and legal concept wholly to be distinguished from citizenship of a nation state. The other member states solemnly confirmed in a written declaration that CEU was not to be equated with citizenship of a state. I agree with the member states that CEU is not citizenship as such. It follows a fortiori that there is no inconsistency between the Danish position and the Treaty.
18. In Micheletti the ECJ with respect was playing with fire when it sought to impose constraints on Member States as to the terms on which nationality could be lost and acquired, suggesting that member states had to have due regard to community law. That was wrong with respect, as it was inconsistent with the Edinburgh Declaration, which as I have demonstrated confirmed that nationality is entirely a matter for member states, none of which is bound to pay the slightest attention to community law. The observations in Michelettii were obiter however, that is to say non-binding comment. It does not appear that the text agreed at Edinburgh was drawn to the court’s attention. Had the ECJ gone so far as to decide in either Micheletti or Kaur that Article 8 (now 17) had a meaning beyond that indicated to the Danish government by the other member states then in my opinion the document delivered by the high representatives of Her Danish Majesty’s government to the representatives of the other contracting parties to the Treaty of Maastricht would under international treaty law amount to a reservation, which would require agreement by all the contracting parties, thereby re-opening the ratification process. That is because a reservation must be agreed by all state parties to a multilateral treaty – there is no such thing in international law as a unilateral reservation, unless a treaty makes express provision for “opt-outs.” The ECJ came close to undermining the Maastricht ratification (which was one of the most difficult of any international treaty, reflecting its enormously controversial provisions) in Micheletti. Aside from the contempt shown to the Queen of Denmark and her people (there are few bodies in the world with respect with such a track record of contemptuous disregard for the legal orders of sovereign nation states as the ECJ) the comments in Micheletti were economically illiterate with respect, since the Maastricht treaty is the sole (somewhat shaky) basis for the euro currency. It is perhaps fortunate that the markets were not following this litigation too closely.
19. I fully appreciate that although CEU is an almost legally valueless concept, it is nonetheless deeply offensive to many people, including it would seem those instructing me, as is the unnecessary use of the words “European Community” on the cover of our passports. So far as that matter is concerned there is no legal reason at all why the UK government should not desist from the non-binding agreement, not incorporated in UK or community law, to use a common format. We could restore the old, blue, hard-backed format overnight without legislation or treaty change. Nor is there any legal obstacle to simply renewing the old blue passports for a further 10 years, if necessary with a new photograph, provided there is still space in the passport itself. Alternatively the Passport Office could simply offer people the option, although I could understand official reluctance to offer freedom of choice, which if the correspondence sent to me on the subject is any guide could lead to unsold stocks of the widely detested maroon ’EC’ passport. It is legal to enclose the new format passports in a facsimile cover of the old blue document and such covers are commercially available.
20. Mr. Sheehan correctly advises a method of overthrowing CEU status in his letter of 24th January 2000. Only British Citizens and those with a close connection with Gibraltar (who are of course British) are CEUs. It follows, as Mr. Sheehan advises, that anyone throwing over their British Citizenship under s.12 of the British Nationality Act 1981 (BNA81) would lose CEU status. Before making such a declaration, in order to avoid statelessness, it is a requirement under s.12 that the nationality of another jurisdiction is held or acquired. What Mr. Sheehan does not say of course is that the right of abode in the United Kingdom is not dependent on British Citizenship – anyone born here before 1st January 1983 will have acquired the right of abode under the Immigration Act 1971 and ironically would re-acquire the status of a British Subject if the nationality of another member state of the Commonwealth was obtained. Under s.37 of the BNA81 the terminology of British Subject was abandoned for British citizens, but it is axiomatic that an Act of Parliament is presumed not to extend to the dominions unless the contrary intention appears in the Act itself or arises as a matter of necessary implication. A Canadian Citizen for example is not affected by anything in the BNA81, so someone born in Britain prior to 1st January 1983 who acquired Canadian Citizenship could renounce British Citizenship, throw over Citizenship of the European Union and be entitled to call himself a British Subject at the same time. (It is still proper for us to describe ourselves as subjects of HM the Queen, or informally as British subjects, but not British Subjects in the formal sense). I suspect that if the Canadian or any other Commonwealth government were willing to issue passports to British-born applicants describing them as “Citizen of Canada and British Subject” etc. they would earn useful fee income.
21. The status of HM the Queen is raised a number of times in the papers sent to me. It seems that the government has allowed the misconception to grow up that by means that have not yet been identified Her Majesty is a Citizen of the European Union. Certainly there is no Act of Parliament which says so. If the government wish to alter the status of the Sovereign by Act they must do three things. Firstly they must state in the Bill that it is intended to bind the Sovereign. Secondly, as a matter both of courtesy and common sense, the Prime Minister must go to his Sovereign and seek Her assent to the Bill, which assent is then communicated in the ordinary way to the House of Commons. If the Prime Minister is foolish enough to go off on a legislative frolic of his own he risks refusal of Royal Assent to his Bill. Our Liege Sovereign Lady with respect is not a rubber stamp and is not obliged to put Her name to every piece of legislative nonsense which is put in front of Her, although doubtless as a constitutional monarch She would grant the Prime Minister a dissolution if he wished to go to the country on the issue. Thirdly, if the Bill affects the status of the Sovereign (and making Her a CEU would do that, albeit that the effect would largely be symbolic) both as a matter of comity and in accordance with the Statute of Westminster II and the various independence statutes which incorporate Westminster II principles he should consult with the governments of all sixteen countries of which Her Majesty is the Head of State and obtain their agreement. In relation to some countries (Eg Canada, Australia, and New Zealand) governmental consent would not suffice and there would need to be Parliamentary approval. It must always be borne in mind that the United Kingdom is only one of a number of countries which have the great good fortune if I may say so to enjoy having Queen Elizabeth II as Head of State.
22. None of those things was done in relation to the Bill incorporating the Maastricht Treaty and it follows as a matter of constitutional law that Her Majesty is not a Citizen of the European Union. If the government are going about saying so they should cease and desist forthwith. They might at the same time take care to mind their manners. The same observation extends to officials of the EC and other member states, if they have summoned the sheer gall and effrontery to describe Her Majesty as a Citizen of the European Union, a concept that many right-thinking people in this country would regard as extraordinarily offensive. If that were the official position of any EC member state (and I doubt it) then that state would risk forfeiting any claim on the friendship of the British people.
23. I might add that Her Majesty is not a British Citizen either, since nothing in the BNA81 extends to the Crown. Her Majesty is British (as well as Canadian, Australian, Jamaican etc), but not a British Citizen within the meaning of the Act, which is purely a nationality statute. If it be objected that Her passport would describe Her as a British Citizen, my response would be that I am not aware that Her Majesty possesses such a document. As the British Sovereign She would not ordinarily be subjected to customs and immigration formalities at the frontier of a receiving state, which would as a courtesy have been given advance notification of Her Majesty’s arrival, even on a private visit, indeed any receiving state would doubtless be cautious before subjecting a visiting Head of State to any indignity at its frontier. Wars have been started for less. Since CEU status only attaches to British Citizens and British Dependent Territories Citizens by virtue of connection with Gibraltar, this is another ground for saying that Her Majesty is not a Citizen of the European Union.
24. I have been shown in my instructions a number of ‘Notices of Treason’ that were handed in at Magistrates Courts up and down the country, together with some chilly responses from divers, bemused Justices Clerks. I cannot say that I would have advised such a course of action and I am bound to advise strongly against the proposed plan to trouble various County Courts with applications in respect of CEU. It seems to me that the ruling of the ECJ in Manjit Kaur answers the question posed in my instructions. I cannot see that a declaration is necessary. It would certainly be expensive and so far as I can tell would serve no useful purpose in circumstances where the Attorney-General (who would be the proper respondent) would be extremely unlikely to say that CEU was equivalent to citizenship of a state or anything like it. He could be written to, and shown this Opinion if so advised, but he would be unlikely to risk unravelling the Maastricht Treaty (and risk undermining the euro in the foreign currency exchange markets by raising official doubts about the legality of the currency, doubts which would no doubt be in worldwide circulation on the Internet within hours of such dramatic correspondence being received) by departing from the interpretation of Article 8 agreed to by Her Majesty’s Government in the Edinburgh Declaration. It is important to note that if it were to be put about that CEU was equivalent to citizenship of a state it would not just be the Danish government which would have locus to challenge the Maastricht Treaty – any defaulting party to a contract which specified the euro as the contract currency could simply cite failure of the other member states to agree to the Danish reservation as a justification for not paying, as the currency no longer had any legal basis, not that it would matter much since an attack by the United Kingdom government or courts on the Danish ratification would probably send the currency into freefall anyway, to the point where the defaulting party could buy them cheaply (sending a man with a wheelbarrow if necessary to collect them from the bank). It must always be remembered that huge euro positions are held by insurance companies, trusts and so on, which are under a legal obligation to secure the best return for third parties and would be very exposed if the legal basis for the currency was put into doubt and they did not sell those positions without delay.
25. The proper venue for an application would be the Administrative Court of the High Court, by way of application for permission for leave to apply for judicial review, which would probably be refused since judicial review is a discretionary (and rather inadequate) remedy, and it would be argued, not unreasonably, by Mr. Attorney that the issue was already settled. The County Court would have no jurisdiction to consider the matter and any application made would be refused with costs and rightly so. It is quite likely, if not inevitable, that costs would also be awarded in the High Court.
26. I cannot depart this subject, as a constitutional lawyer, without commenting adversely on the extraordinary decision by the EC to replace national currencies with a treaty based currency, without first creating a new state. The risks of such a venture are exposed starkly in my opinion by the casual approach of the ECJ to the CEU issue in Micheletti. The starting point for any discussion on the meaning of Article 17 must surely be the Edinburgh Declaration, where all the State Parties to the Treaty of Maastricht agreed on the meaning of what was then Article 8. The problem is that the Edinburgh Declaration did not bind the ECJ, which as a matter of community law is free to depart from the meaning accorded by the member states. The problem is exacerbated by the nature of the ECJ, which with respect lacks expertise in the constitutional traditions of the Member States, which surely ought to be a core competency for any international treaty-based court. Not only does the court lack this competency it also lacks respect for the sovereignty of member states, as demonstrated in its facile (with respect) judgments in Costa, Simmenthal and Factortame, any one of which could have led to the immediate break-up of the EC had there been stronger governments in the member states. In Factortame for example HMG could simply have responded by refusing to amend the Merchant Shipping Act and sending the Royal Navy into the fishing grounds to enforce it, with the inevitable risk of a clash with the Spanish Navy had it responded, possibly leading to war, a possibility which seems never to have occurred to the ECJ even though it was engaged on a quite astonishing attack on the Sovereignty of Parliament and of the United Kingdom, requiring British ministers to act unconstitutionally, in order to force a great maritime nation (not to mention the world’s third nuclear power, with a strategic intercontinental thermonuclear strike capability) to allow foreign vessels to fly its flag in its own waters, a national humiliation without precedent since the surrender of Singapore.
The poor quality (again with respect) of many of the judges of the ECJ, most of whom are political appointees, adds to the potential dangers for the euro. As it is, an anti-euro Danish government (which could hardly be ruled out given the shattering political impact in Denmark of the rejection of the euro in last year’s referendum) could damage the currency were it to take issue with the comments in Micheletti on the need for member states to have regard to community law when laying down conditions for the acquisition and loss of nationality, a requirement which features nowhere in the Edinburgh Declaration. The reality is that the organs of the EC, including the ECJ, have been singularly fortunate in the supine quality of the governments of the member states, including our own, none of which has been willing seriously to deploy the powerful armoury of weapons available under international law to a sovereign government faced with an external attack on its sovereignty.
27. Turning now to the very powerful weapons in the constitutional armoury of Parliament, I am asked to advise on Bills of Attainder. I must qualify this section of my Opinion by advising firstly that Attainder is a ‘nuclear option’ for Parliament, only to be used in the case of high crimes and misdemeanours by those in public office or high position and secondly that as a safeguard Attainder may only be used with the consent of the Commons, so that the weapon when deployed may have democratic as well as constitutional legitimacy.
28. Those instructing me will be well acquainted with the difficulties of using the ordinary courts against persons of power and influence in society, who have abused their positions now or in the past to betray their country. That the country has been betrayed on the subject of the EC I am prepared to assume for the purposes of this advice. Certainly ministers have been party to grossly misleading statements both to Parliament and the country on the constitutional impact of EC membership. It would be fair to characterise those deceptions as material, in so far as Parliament most probably would not have passed the European Communities Bill into law had it been alerted to the dangers to its statutes of a decision such as Factortame and the referendum in 1975 most probably would not have been won by the government of the day had it acted in good faith.
29. The ordinary courts however are not the answer. As those instructing me are well aware government ministers would have been vulnerable to conviction for High Treason in respect of the Maastricht, Amsterdam and Nice Treaties, each of which was signed without the authority of Parliament, under s.1 of the Treason Act 1795. Sensibly however the Government successfully promoted the repeal of this useful legislation, passed in the aftermath of the French Revolution to protect the Constitution, by means of the Crime and Disorder Act 1998, taking care not to draw the country’s attention to what it was doing. At the same time ministers, wisely perhaps, having regard to their European policy, watered down the penalty for High Treason from death by hanging to life imprisonment. The government retains control however over all criminal prosecutions by means of nolle prosequi, so that the Attorney-General could always bring proceedings to a halt. The result is that the ordinary courts are almost powerless to control treason by ministers. Parliament however is not so hamstrung.
30. I am pleased to see recent signs of Parliament, which has been in decline ever since it agreed to EC entry, beginning to re-assert its will. It may well be that the nonsense of government ministers negotiating international treaties with implications for our domestic law without Parliament’s authority is coming to an end. The proper course is for ministers to go first to Parliament, by means of an enabling Act, for authority to negotiate. The enabling Act sensibly would provide immunity to ministers from prosecution for treason for doing anything that was within the scope of their authority as granted by Parliament. The ministers who negotiated the Maastricht, Amsterdam and Nice Treaties had no such authority. Certainly none was contained within the ECA72, which only applied to existing treaties.
31. In a proper case a Bill of Attainder could be brought in. This awesome form of proceeding is designed to hold the highest in the land to account before Parliament. It has rightly been described by Erskine May as the “highest form of Parliamentary judicature.” No occasion to use it has arisen since the eighteenth century, which is not to say to say that the power is obsolete – a Bill of Attainder could be brought in tomorrow, if Parliament were sitting. It is important to emphasise that an Act of Attainder is primary legislation, so that it is not governed by the Human Rights Act 1998, nor does the limitation on punishment contained in the 6th Protocol to the European Convention on Human Rights apply. A Bill of Attainder proceeds through Parliament in the same way as any other primary legislation, save that it takes the form of a State Trial and the Defendants are entitled to be defended through counsel, cross-examine witnesses for the State and call witnesses in their own behalf. Unlike an impeachment the Commons are judges of equal jurisdiction with the Lords. Bills of Attainder are normally brought in the House of Lords, but there is precedent for bringing in a Bill of Attainder in the Commons. The Defendants would ordinarily be in custody throughout. Although the attainder procedure has been misused (eg by the Dublin Parliament against those loyal to King William III) it has normally been used against those who wished to subvert the State or the Crown with foreign assistance, and sends a useful message to the sponsoring state that its interference in the internal affairs of the kingdom has been discovered and will not be tolerated. Because of the involvement of foreign states behind the defendants there is usually tight security.
32. Now of course I am not advising that a Bill of Attainder be brought in, nor am I asked to draw up an indictment. I am instructed only to advise on the procedure. There would be formidable political obstacles to overcome. Whilst it is a complex form of proceeding that has not been used for upwards of two centuries there are in my opinion no practical or procedural difficulties that could not be overcome. Provided that it is used only in a proper case, that is to say against someone of high standing who is beyond the reach of the ordinary courts and has abused his position so as to undermine the Crown and Constitution, attainder would be constitutional. No doubt there would be objections and these would be dressed up in constitutional form, along the lines that the procedure was inhumane, obsolete, or a breach of human rights and so on. Objection might also come from the judges, who might think that their authority was being undermined. None of these objections would have any validity.
33. The human rights objection would in reality be a political objection. The procedure is more than fair, and although the formal rules of evidence do not apply, these have been watered down in the ordinary courts anyway, in both civil and criminal proceedings, with the enthusiastic support of the judges. The reason most attainders are quick is because there isn’t much scope for disputes of fact, but there is every opportunity to question the witnesses for the Crown and examine documents. To suggest that the procedure is obsolete would be to wholly misunderstand the nature of the British Constitution, which has immensely powerful safeguards, of which attainder is one. To say that it hasn’t been used for a long time is simply another way of saying that it has been a long time since our Constitution was under threat. Some judges, jealous of the power of Parliament, would object, but they could always be reminded that Parliament is itself a Court, the highest in the land. It is not for inferior courts to complain about the exercise by a superior court of its undoubted jurisdiction. There would in any event be plenty of scope for the involvement of the senior professional judiciary, most of whom sit in Parliament, in the upper house. However they were dressed up the objections would in most cases be rooted in jealousy of Parliament, political opposition to the Constitution and an anxiety to damage the British interest.
34. Attainder is an immensely powerful weapon, which when justly used against enemies of the British State, is a mighty safeguard of liberty under the law and the birthright of the common people to live as a free people under a free Constitution. No-one who is loyal to their Sovereign and believes in the Sovereignty of Parliament need fear Parliament’s power over all in the land. The loyal and the innocent, the good and the poor, may rest easy that only the rich, the powerful and the guilty would ever be subjected to this awesome form of proceeding, the ultimate guarantor of the supremacy of the Queen in Parliament. Should a political criminal ever again be brought before the Bar of Parliament we may be assured that his or her crime against our Glorious Constitution would have been grave indeed.
35. Whilst I cannot agree with respect with every proposition of law put forward in the pamphlet “Defence of the Realm,” enclosed with my instructions, in particular the relationship between statute and common law and the nature of Magna Carta (which was a treaty and then put into statutory form in the reign of King Edward 1 – 25 Edw.1, 1297), I congratulate the author with respect on citing the extract from Bracton at page 9, the single most important piece of text in all of our long and magnificent constitutional history, in the course of which we have invented the concepts of liberty, rights and democracy. The full form of the great maxim is as follows: ipse autem rex non debet esse sub homine, sed sub Deo, et sub lege, quia lex facit regem. Attribuat igitur rex legi, quod lex attribuat ei, videlicet dominationem et potestatem; non est enim rex, ubi dominatur voluntas et non lex. The King Himself should not be subject to man but to God and the law, for the law makes the King. Therefore, the King should give to the law what the law gives to him, namely, dominion and power; for there can be no King where will, and not law, governs. It follows a fortiori that the exercise of the Royal Prerogative is subject to law and may be reviewed by the courts, a legal fact recognised in Council of Civil Service Unions v. Minister for the Civil Service  AC 374, which fatally undermined the severely flawed reasoning (with respect) of the Court of Appeal in McWhirter v. Attorney-General  CMLR 882. The late Ross McWhirter was surely right to question the innovative use of the Royal Prerogative to sign a treaty with self-executing provisions without the authority of Parliament. Ministers are not above the law – the Royal Prerogative is not a carte blanche, a point which some thought had been settled by the Civil War.
is a valid, legal statute, even though it was contrary to the spirit of the Constitution and its passage was obtained by deception of Parliament (eg by Geoffrey Ripon QC MP as he then was, seeking to disguise the failure of the government to protect British fishermen by obtaining a permanent derogation from the CFP, a gross deception which will be very familiar to my lay clients). It is impossible to characterise s.2 of the ECA72 as constitutional, both on the grounds of the self-execution provision and the attempt, albeit futile, to bind future Parliaments, although of course the futility or otherwise of that attempt is now before the courts in the Thoburn case. None of this matters so far as the legality of the Act is concerned and as a matter of law the ECA72 should be obeyed, together with the directives and so forth which it incorporates, however strange some of them may be. The other side of the coin of course is that the statute repealing the ECA72 will be equally valid.
37. I hope that this Opinion answers the many interesting and thought-provoking questions posed in my instructions. It is a pleasure to advise lay clients whose care and love for our Glorious Constitution is so evident, a matter which goes very much to their credit if I may be permitted to say so. I advise accordingly.
Dated this 20th day of August in the Year of Our Lord 2001.
SilentMajority nor any associate thereof does NOT vouch for the veracity of the documents hosted on its site or CD nor any foreign language documents thereon & advises you consult your own solicitor on legal details as we do not accept liability for, nor presume to give legal advice ourselves.
UKIPWales DO NOT accept responsibility for any details or information in this article.

matches:
sui generis
v.
v.
v.
v.
v.


In your capacity as Chairman of the Waterbury Financial Planning and Assistance Board (the "Board"), you have asked for an advisory opinion concerning the membership of the Board. Specifically, you have asked whether Board member Mr. Jack Cronan, an appointee of the Governor who is the chief executive officer of the Waterbury Teacher's Association, may continue to serve as a Board member following his planned retirement from employment with the City of Waterbury (the "City") on July 1, 2004 and end of his tenure as chief executive officer of the Waterbury Teacher's Association. For the reasons set forth below, we conclude that he may not continue as a Board member.
The Board was created by the General Assembly in 2001 by the enactment of Special Act 01-1. Upon finding and declaring that a financial emergency existed with regard to the City, Special Act 01-1, among other things, created the Board "to review the financial affairs" of the City "to achieve or maintain access to public credit markets, to fund the city's accumulated deficits and to restore the financial stability" of the City. Special Act 01-1, § 1. The Board is charged with broad financial oversight powers and duties, including the review and approval of the City's annual budget, a financial plan for the City, and the terms of bonds or funding obligations; the review and approval of collective bargaining agreements or modifications to such agreements; service as an arbitration panel as to labor contracts subject to binding arbitration; review and approval of other contracts; and a variety of other auditing and monitoring functions. Id., § 11.
Section 10(a) of Special Act 01-1 provides that the Board shall consist of seven members: the Secretary of the Office of Policy and Management or the Secretary's designee, who serves as chairman; the Treasurer or the Treasurer's designee; the mayor of Waterbury; and four members appointed by the Governor, including one who is a resident of the City, one who is affiliated with a business located in the City, one with an "expertise in finance," and one who is the chief executive officer of a bargaining unit representing City employees. Id., § 10(a). The Special Act specifies that this last member "shall be the chief executive officer of a bargaining unit representing employees of the city who is jointly recommended by a majority of the chief executive officers of such units provided such recommendation shall be made not later than seven days after the effective date of this act." Id.
Mr. Cronan, presently the chief executive officer of the Waterbury Teacher's Association, is the Governor's appointee pursuant to this provision. Your letter indicates that the recommendation for his appointment was made within seven days of the effective date of Special Act 01-1. Your letter further indicates, however, that Mr. Cronan intends to retire from his employment with the City and therefore will no longer be the chief executive officer of the Waterbury Teacher's Association. Your question is whether Mr. Cronan may remain as a Board member even if he no longer is the chief executive officer of a bargaining unit.
The language of the Special Act does not itself plainly or directly answer the question, and our review of the legislative history of the Special Act provides little clear insight on this question. Therefore, our analysis must be informed by general principles of statutory construction. As with all statutes, we are guided by the requirement that legislation must be interpreted in a manner that furthers, rather than frustrates, its intended purpose, and that does not result in absurd results. Jones v. Kramer, 267 Conn. 336, 348 (2004); State v. Reynolds, 264 Conn. 1, 33 (2003), cert. denied, 124 S.Ct. 1614 (2004).
It is evident that the General Assembly dictated the composition of the Board to ensure representation of key parts of the Waterbury community. Thus, the Governor's appointments are required to include a Waterbury resident, a person affiliated with a Waterbury business, and a representative of the City's employee unions. Unlike the appointment of a person having "expertise in finance," the purpose of requiring the appointment of the chief executive officer of a bargaining unit is not simply to ensure that this appointee have certain qualifications or experience. Rather, it is to provide representation on the Board for the City's employee unions. See 44 H. Proc., at 734 (Mar. 8, 2001) (remarks of Rep. McDonald indicating that Board's membership was expanded to include union representative). It appears that union representation on the Board was in part a response to concerns raised about the Board's broad powers with regard to collective bargaining agreements. Id.; see also 44 H. Proc., at 727 (remarks of Rep. Belden); Special Act 01-1, § 11(4), (5).
No other interpretation of the statute is viable in light of its purposes and its language. The provision in § 10(a) of the Special Act requiring that the recommendation for appointment by the majority of the chief elected officers of bargaining units be made within seven days of the Special Act's effective date creates some ambiguity. If literally construed, only a person recommended within that initial seven day period could serve as a Board member. However, in light of the declaration of a financial emergency that was the cause for the creation of the Board, the purpose of this provision was to ensure that the initial appointment would be made quickly, not to create a permanent appointment. To construe this provision otherwise would bar new appointments -- with the untenable result of precluding any new members after resignation or other departure of this Board member. That would be a result contrary to the basic rule of construction that statutes must be construed to avoid absurd or unreasonable results. See Rocco v. Garrison, 268 Conn. 541, 550 (2004).
The most reasonable construction of § 10(a), consistent with the legislation's evident purpose of providing representation for the City's employee unions on the Board, is that one Board member must be a chief executive officer of an employee bargaining unit. Accordingly, if Mr. Cronan retires and no longer is the chief executive of a bargaining unit, he cannot continue to serve as a Board member.