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The following material represents highlights from Mr. Joseph Buckley's presentation at the Reid Conference for Investigative Training November 6-8, 2000. Mr. Buckley is President of John E. Reid and Associates, Inc.
Over the last several years police interrogation tactics and techniques have come under scrutiny by both the courts and the media. ABC's 20/20, Dateline NBC, and CBS' 48 Hours have all featured segments on the issue of false confessions. The expert that each of the networks relied on for their criticism of police interrogation techniques was Richard Ofshe, a social psychologist with the University of California, Berkley.
In the past several years Dr. Ofshe has been retained by hundreds of defense attorneys as an expert witness on police interrogation techniques, and the phenomena of false confessions.
In his testimony Dr. Ofshe regularly criticizes what he describes as The Reid Technique. We have had the opportunity to testify against Dr. Ofshe on a number of occasions, and our office is regularly contacted by prosecutors from around the country for information about the nature of his testimony. As a result of these experiences we placed on our web site (www.reid.com) several years ago, a link called The Critics Corner in which we discuss a number of Dr. Ofshe's criticisms and offer our responses.
The following discussion is an expansion of that basic information.
Miscarriages of Justice in Potentially Capital Cases by A. Bedau and M. Radelet (published in the Stanford Law Review, 1987) and, The Consequences of False Confessions: Deprivation of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation by R. Ofshe and R. Leo, published in the Journal of Criminal Law and Criminology, 1998.
Here are the details of these two studies.
Re: Miscarriages of Justice... This study reports on 350 cases from the 20th century in which the authors claim that innocent people were convicted in homicide cases. Of these 350, 49 cases involved confessions (14% of the total). However, many of these interrogations involved clearly coercive tactics, including beatings, and days of uninterrupted interrogation.
A critical review of this study, Protecting the Innocent: A Response to the Bedau-Radelet Study, was published by Markman and Cassell in the Stanford Law Review, November, 1988.
In this study Ofshe and Leo report on 60 cases from the prior 30 years in which they claim innocent people falsely confessed in homicide cases. These 60 cases were broken down into 3 groups: cases that were proven to be false (34); cases that were presumed to be false (18); and, cases that were considered to be highly probable to be false (8).
Of these 60 cases of purported false confessions, 8% were from juvenile suspects and 28% were from individuals that were apparently emotionally or mentally handicapped. It should also be noted that 30% of the cases involved interrogations that lasted over 12 hours.
A very effective rebuttal to this study, The Guilty and the Innocent: An Examination of Alleged Cases of Wrongful Conviction from False Confessions, was written by Paul Cassell and published in the Harvard Journal of Law and Public Policy, 523 in 1999. In this rebuttal Professor Cassell points out that in at least 9 of the above referred to 60 cases the individuals were telling the truth when they confessed.
These two studies represent anecdotal information. They should be carefully reviewed, and the issues that they raise be carefully considered, but they do not provide any scientific basis for the claim that police interrogation techniques that conform to the guidelines established by the courts result in false confessions. They do illustrate that illegal interrogation procedures can cause innocent people to confess.
What exactly is The Reid Technique? On a regular basis we will see a reference to an interrogation in which the interrogator said that he/she used The Reid Technique, which may or may not have been the case. At the same time, many of our critic's testify as to what they believe The Reid Technique involves - oftentimes completely misstating and misrepresenting the elements of The Reid Technique. The following information should help to clarify what we mean when we refer to The Reid Technique.
A non-accusatory interview that is conducted before the investigator engages in any accusatory interrogation. This interview generally lasts from 30 to 45 minutes and includes both investigative and behavior provoking questions.
The interview is conducted in a controlled environment with only one investigator interacting with the subject.
The interview and interrogation are distinctly different procedures, usually separated by several minutes.
The primary persuasive vehicle of the interrogation is a theme that offers moral justification for the suspect's crime. The theme is presented as a monologue and the investigator discourages the suspect from offering denials or explanations for incriminating evidence. At no time during the interrogation process should the investigator state that if the suspect's crime was somewhat justified, he may be afforded leniency.
The impetus for the first admission of guilt is in the form of asking an alternative question. This question presents the suspect with two choices concerning some aspect of the crime. For example, "Did you plan this out months in advance, or did it pretty much happen on the spur of the moment?" The suspect is encouraged to accept the positive choice (spur of the moment). In presenting and contrasting the alternative question, the investigator must not offer threats or promises. An example of an improper alternative question would be, "Do you want to be charged with first degree murder, which will mean life in prison, or was it just manslaughter, where it happened on the spur of the moment?"
Once the suspect accepts the positive alternative, active persuasion stops within the interrogation process. The investigator asks non-leading questions to draw out the full confession. The final step of the process is to have the verbal confession witnessed and converted to a court admissible document.
If the process in question does not involve these elements, it is not The Reid Technique.
The issues surrounding police interrogation techniques and procedures must start with some basic legal guidelines. Clearly, if the suspect is in custody, he must be advised of his Miranda rights and the appropriate waiver obtained before any questioning takes place. However, the U. S. Supreme Court has clearly stated that "focus of suspicion" does not require the advisement of rights (Beckwith v. US 425 US 341 (1976)), and that merely because the questioning takes place in the police station does not mandate that the warnings be given (Oregon v. Mathiason 429 US 492 (1977)).
"The fact that the police misrepresented the statements that [the suspected accomplice] had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided on the "totality of circumstances." Frazier v. Cupp 394 US 731 (1969).
One court, however, drew a distinction between verbally misrepresenting evidence and creating it. In the case of State v. Cayward 552 S.2d 971 (Fla. 1989) the investigators had created a falsified crime laboratory report that implicated the suspect in a homicide and, with the use of this prop, were successful in persuading the suspect to confess. The court recognized the distinction between "verbal assertions and manufactured evidence" ruling that the latter threatens a loss of integrity within the judicial system. Specifically, the court was concerned over the possibility that a false report used for interrogation purposes might well be retained and filed in police records and thus be subject to public attention as though it were fact.
The courts require that a confession is both voluntary (the product of the suspect's free will) and trustworthy (a statement that is accurate and true).
A voluntary false confession is one in which the subject confesses in the absence of any police questioning. Individuals may make a voluntary false confession as the result of organic or functional mental disorder, or for some specific purpose or gain, such as the protection of the actual offender.
An allegation of a coerced compliant confession typically occurs when the suspect claims that he confessed to achieve some instrumental gain, such as being allowed to go home; bringing the interrogation to an end; or escaping the inherent psychological or physical pressures of the interrogation.
Coerced internalized confessions are confessions that are allegedly false and occur when the investigator successfully convinces an innocent suspect that he is guilty of a crime he does not remember committing. There are three types of suspects who may claim that a faulty memory affected the trustworthiness of their confession: guilty suspects who have given a voluntary and trustworthy confession and are now looking for some way to discredit it; a guilty suspect who actually does not remember committing the crime; and, an innocent suspect who is convinced through the interrogation process that he must be guilty, and, therefore, accepts responsibility for committing the crime through a confession.
It is important to understand some of the factors that could influence the admissibility of a confession, as well as what our critics describe as the "model of interrogation" that they claim investigators follow.
"The totality approach permits - indeed, it mandates - inquiry into all of the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warning given him, the nature of his Fifth Amendment rights, and the consequence of waiving those rights." Fare v. Michael C. 442 U.S. 707 (1979). An investigator should remember that the younger a suspect is, the more he may lack the confidence to offer strong denials, and may even try to please the investigator. Furthermore, the younger a suspect is, the less active persuasion should be used during the interrogation. More emphasis should be placed on the factual elements of the case and the incriminating evidence or conflicting statements made by the suspect.
In a custodial situation it may be advantageous to have the juvenile suspect repeat back the essential elements of the rights so as to demonstrate his understanding of the advisement.
In the case of Gallegos v. Colorado 370 U.S. 49 (1962) the U. S. Supreme Court reversed the murder confession of a 14-year-old boy because the trial court had admitted a confession that had been obtained while the boy was being questioned alone. According to the majority of the Court, he had "no way of knowing what the consequences of his confession were without advice regarding his constitutional rights from someone concerned with securing him those rights - and without the aid of more mature judgment as to the steps he should take in the predicament in which he found himself."
While most courts have declined to adopt a fixed rule that renders youthful suspects incapable of waiving Miranda rights, some courts and legislators have applied what is referred to as the "interested adult rule" which prescribes that there can be no valid waiver by a youth under a certain age (16, 17 or 18). In Illinois, for example, any suspect under the age of 13 must be represented by legal counsel during any custodial questioning.
Another important factor to consider is the intelligence level of the suspect.
In the case of Smith v. Duckworth 910 F.2d 1492 (7th Cir.1990) the U.S. Court of Appeals held that a finding of involuntariness cannot be predicted solely upon mental instability, but that a defendant's mental state is relevant to the extent it makes a suspect more susceptible to "mentally coercive police tactics."
In another case, Vance v, Bordenkircher 692 F.2d 978 (4th Cir. 1982) the U.S. Court of Appeals held that the murder confession of a 15-year-old youth who had an IQ of 62 and a mental age of nine was voluntary and admissible. The U.S. Supreme Court declined to review this case.
With the above in mind, it becomes very important for the investigator to document the suspect's vocabulary, verbal skills and level of education to be able to demonstrate the suspect's ability to understand what s/he was saying.
It is important for the investigator to conduct the interrogation at the suspect's level of understanding and comprehension rather than strictly the chronological age. If we have a suspect who is 20 years old but has the IQ level of a 12 year old, we should conduct the interrogation as though we were talking to a youngster.
When questioning a suspect in a language which is not their first language, the investigator should make sure to read the Miranda rights in both languages if feasible. If the interrogation is conducted in English, it is important to document the appropriateness of the suspect's responses, as well as their requests for clarifications, and the quality of their responses.
If feasible, the confession should be read in the suspect's native language before he signs the document.
If a suspect displays behaviors that are strongly suggestive of severe mental, emotional or physical disorders, it may not be appropriate to interrogate them at that time. If a suspect exhibits severe thought disorders, they should not be interrogated.
Suspects who exhibit severe anxiety disorders may be more susceptible to false confessions as a result of perceived duress. Suspects who are addicted to drugs or alcohol should not be interrogated when exhibiting clear symptoms of withdrawal, or when significantly under the influence of drugs or alcohol.
In anticipation of possible challenges to a confession based on any of the above elements, it is advisable to document the basic information about the suspect's suitability at the time of questioning. Consequently, we suggest that the suspect complete a Medical Data Sheet. We have provided an example of a Medical Data Sheet on the back page of this newsletter that you can duplicate and use in future interrogation situations.
Dr. Richard Ofshe, a social psychologist with the University of California, Berkley, has described in testimony, the following as the "model of interrogation" that he claims investigators follow in their interrogations. According to Ofshe, interrogation consists of two parts: eliciting the first admission and obtaining the post confession narrative.
In an effort to obtain the first admission of guilt, the interrogator must convince the suspect that "there is absolutely no doubt that you committed this crime." To further accomplish this, the interrogator overwhelms the suspect with the evidence, including the use of fabricated evidence. The general demeanor should be one that conveys the idea to the suspect that the interrogator will get more upset if the suspect attempts to or continues to deny any involvement in the crime.
One of the interrogator's goals is to make the suspect feel helpless by making such statement as "You're not leaving this room until you confess." or, "If you tell me you did this you can go home and sleep in your own bed tonight." or, "With the evidence we have, there's no doubt that you will be convicted of this. The only question is how long are you going to sit in prison."
Once the sense of "helplessness" has been established, the investigator obtains the first admission of guilt by using a motivating statement. Ofshe describes low-end motivating statements to include comments such as, "You will feel better about this once you tell the truth." or, "For everyone concerned, tell the truth." or, "Get this over with and out it behind you - just tell the truth." If these statements are not successful, then the investigator will use high-end motivating statements such as, "You will be sentenced to the maximum term unless you confess." or, "If you don't tell the truth I will get your children turned over to child protective services." or, "If you don't confess the judge will make an example out of you and give you the maximum sentence."
Once the investigator obtains the initial admission of guilt, he then moves into the second stage of the interrogation, which is to obtain the post confession narrative in which he attempts to develop the details of how the suspect committed the crime. Ofshe relies extensively on the post confession narrative to identify what he suggests are false confessions. The criteria he uses for suggesting that a confession is false are: 1) the fact that the suspect's statements conform to the police theory of how the crime was committed; 2) there are factual inconsistencies between the suspect's statements and the actual evidence; and, 3) there are no details that can be used for independent corroboration of the confession.
In utilizing the Reid Nine Steps of Interrogation the investigator begins with Step 1 - The Direct Positive Confrontation. Our purpose in Step 1 is to establish and express our high confidence in the suspect's guilt and to establish a basis (in the suspect's mind) for the interrogation.
To help establish this sense of confidence in the suspect's guilt we make a very direct accusatory statement, "The results of our investigation clearly indicate that you did [issue]," while holding an evidence file or utilizing other props (such as a videotape). The pretense for the interrogation may be described as trying to establish the circumstances behind what happened; trying to find out what kind of person the suspect is; trying to establish the extent and frequency of his involvement; and/or, to find something about the suspect that can be used as the basis for a compliment.
Criticism: The investigator is expressing a false confidence in the suspect's guilt.
Response: The interrogation is being conducted because there was information developed during the investigation or the subject's interview that indicated his potential involvement. Furthermore, the suspect knows whether or not he committed the crime. If the interrogator is incorrect the suspect should offer strong denials.
Criticism: By focusing the interrogation on why the suspect committed the crime or what the full circumstances were behind the commission of the act, the interrogator is directing the suspect's attention away from the possible consequences of his actions.
Response: In order to persuade the suspect to tell the truth, it is essential to reinforce their rationalizations for committing the crime versus focusing their attention on the possible consequences.
Following the initial confrontation, the interrogator begins Step 2 - Theme Development. The core of Step 2 is to present to the suspect, in a monologue, reasons and excuses which morally (not legally) excuse the suspect's behavior. The themes do not plant new ideas in the deceptive suspect's mind, but allow the suspect to feel more comfortable talking about his crime by allowing him to reduce the perceived consequences associated with it - both real consequences (those affecting his freedom or livelihood) and personal consequences (those affecting the suspect's self-esteem). The theme should be presented in a compassionate and understanding tone of voice.
Criticism: Themes imply a promise of leniency.
Response: At no time should the suspect be told that if he committed the crime for an understandable reason that the consequences would be less.
Criticism: The investigator does not present the evidence against the suspect so that the suspect cannot make an intelligent choice as to whether or not to confess.
Response: At the time of the interrogation there may not have been irrefutable evidence that the suspect committed the crime, which is why he was interrogated. He made a free choice to voluntarily confess.
Criticism: The interrogator's use of fictitious evidence (which may occur during theme development) may convince an innocent suspect that he is guilty.
Response: An innocent suspect knows that the evidence could not exist and, therefore, is not persuaded by it.
During the course of the presentation of the themes, most suspects will attempt to deny any involvement in the commission of the crime. This brings us to Step 3 - Handling Denials. The more often a suspect verbalizes a denial, the less likely he will be persuaded to tell the truth. Consequently, the interrogator should attempt to discourage weak denials by the use of verbal phrases ("Jim, wait just a minute") combined with nonverbal gestures (turning the head away and using the hand in a stop gesture).
Criticism: The interrogator prevents an innocent suspect from telling the truth.
Response: The interrogator discourages the suspect from offering denials but does not prevent him from saying anything.
Criticism: Investigators are not trained to recognize or distinguish a truthful denial from a deceptive denial.
Response: Studies show that investigators can identify truthful and deceptive suspects based on their verbal behavior. Deceptive denials are typically easily cut off; avoid descriptive language; conflict with the suspect's nonverbal behavior; and, become acceptant. On the other hand, truthful denials are not easily cut off; use descriptive language; have supporting nonverbal behavioral characteristics; and, develop into sincere anger.
As the interrogation continues, many suspects who have been ineffective in verbally dissuading an interrogator's confidence will oftentimes simply turn off the interrogator and wait him out. Through Steps 5 and 6 it is important for the interrogator to regain the suspect's attention. One technique for doing so is to physically move closer to the suspect. This is done to establish and maintain emotional closeness. It is not done to intimidate the suspect. If the suspect appears uncomfortable with this closeness, the interrogator should move back.
When a suspect appears ready to confess, the interrogator oftentimes will use an alternative question (Step 7) to obtain the first admission of guilt.
The Alternative question offers the suspect two incriminating choices concerning some aspect of the crime. Accepting either choice is an admission. The alternative question offers the suspect a face-saving choice to make the first admission. The interrogator should not present possible punishments when contrasting the positive and negative choices for the alternative question.
"If this was planned out months in advance that tells me you have a criminal mind and are capable of committing much more serious crimes than this and I think that's despicable. But if this happened on the spur of the moment I can understand that. Did you plan this out for months in advance, or did it pretty much just happen on the spur of the moment?"
"If you want people to believe that you are greedy and spent this money on fancy things for yourself then my advise to you is to say nothing. But if you really needed this money for your family that would be important to know. Did you spend the money on yourself, or did you use it to help out your family?"
"If this was not your idea and somebody talked you into it that would be very important for me to include in my report. On the other hand, if this whole thing was your idea and you were the mastermind behind it, you're doing the right thing by saying nothing. Was this whole thing your idea, or did you get talked into it?"
"If you keep lying to me about this I'm bound to lose my temper and you don't want me to lose my temper. Do you want to be charged with first degree arson, or was this just criminal damage to property?"
"If you want to spend the next 20 years of your life behind bars you're doing the right thing by saying nothing. By saying nothing that's exactly what will happen. Do you want to spend time in jail, or go home after we get this straightened out?"
"If this was the first time you did something like this I am sure the judge will take that into consideration - but he won't know unless you tell me. So, do you want us to take away your children because you're an unfit mother, or do you want to be able to see your kids again?"
Criticism: The alternative question forces the suspect to incriminate himself.
Response: The suspect always has a third choice, which is to say that neither alternative is true.
Criticism: The alternative question presents a promise of leniency or threatens the suspect with harsh punishment.
Response: At no time should the interrogator describe possible charges, punishment or leniency in association with the alternative question.
Once the suspect accepts one side of the alternative question, in Steps 8 and 9 the interrogator should verbally develop the details of the crime, and then convert the verbal confession into a recorded/written document.
"Where did you go next?"
It is important to attempt to develop corroborative information, such as details about the crime that had been concealed form the public and possible suspects, or information about the suspect's crime that can be independently verified and was unknown until the suspect confessed.
Crime information that is important to develop includes pre-crime behaviors (observation, preparation, discussions, where suspect obtained tools, weapons or knowledge used in the commission of the crime), as well as details concerning the commission of the crime (method of entry, nature of contact with the victim, statements to victim, position or condition of victim or property after the crime, how money was concealed, how property was transported, etc.), and post-crime behaviors (where stolen goods/weapon/clothes/etc are now, who was told, where suspect went, etc.).
It is important to note that very few confessions represent a 100% accurate and complete description of the crime because some suspects desire to protect the identity of an accomplice; attempt to minimize the seriousness of the crime; to reduce the level of shame or embarrassment; to prevent the recovery of incriminating evidence; or to manipulate the investigators.
"You're not leaving this room until you confess."
"If you tell me you did this you can go home and sleep in your own bed tonight (when such is not the case)."
"With the evidence we have, there's no doubt that you will be convicted of this. The only question is how long you are going to sit in jail."
"You will be sentenced to the maximum term unless you confess."
"If you don't tell the truth I will get your children turned over to protective services."
"If you don't confess the judge will make an example out of you and give you the maximum sentence."
The goal of the interrogation process is to develop the truth. It is not a process designed to obtain a confession by any means from any suspect. The interrogator, following the guidelines established in The Reid Nine Steps of Interrogation, will be meeting all of the guidelines established by the courts in conducting proper interrogations to develop admissible confessions from guilty suspects.
10. How would you describe your present emotional and physical well-being?


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Reference in effect in the Eastern District of New York.
inter alia, his Schedules and Statement of Financial Affairs ("SOFA").
prior to the Petition Date.
resolved on submissions, without an evidentiary hearing.
account with Capital One Bank. See attached statement.
and my wife being the homemaker.
The Trustee did not file additional briefing or submissions.
of the refund, less the Debtor's $ 2,500.00 exempt portion.
and withholding payments made during prepetition years." Carlson v.
issues arising under Â§ 541(a)(2)(A).
withholding rule; the income rule; and the 50/50 Rule referenced above.
re Kleinfeldt, 287 B.R. at 293.
percentage of the earnings of the spouses.
Districts of New York. See, e.g., In re Marciano, 372 B.R. 211 (Bankr.
history of financial management' suggests separate financial affairs." Id.
household expenses or educational expenses for their children).
the refund should be divided equally).
of the union. N.Y. Dom. REL. LAW Â§ 236 (McKinney 2009); see also Musso v.
Ostashko, 468 F.3d 99, 102 (2d. Cir. 2006); Marciano, 372 B.R. at 215.
the other." Marciano, 372 B.R. at 216 (quoting Barrow, 306 B.R. at 31).
pursuant to 11 U.S.C. Â§ 541." Marciano, 372 B.R. at 216.
benefit of any tax refund.
often consider the innocent spouse exception. See, e.g., Nihiser v.
Clarke-Lewis v. C.I.R., T.C. Summ. Op. 2008-14, 2008 WL 360715 (Tax Ct.
taxes she paid as a claim against the debtor's estate. Id. at 41-42.
opportunity to submit any further submissions on whether the Debtor or Ms.
Richard F. Artura, Esq., Phillips, Weiner, Artura & Cox, Lindenhurst, New York.
Kenneth Kirschenbaum, Esq., Kirschenbaum & Kirschenbaum, Garden City, New York.
Pending before the Court is the Motion to Turnover Property Under Section521(a)(4) ("Motion") filed by the chapter 7 Trustee Kenneth Kirschenbaum("Trustee"). At issue are refunds of prepetition federal and state income taxespaid by Debtor and his non-debtor spouse. The aggregate amount of the refunds is$ 8,136.00. The Trustee has requested that this Court direct the Debtor to turnover $ 5,636.00 as the nonexempt portion of the tax refunds. Debtor asserts thathis non-debtor spouse is entitled to half of the refunds, and that the amount ofthe refunds to which the Trustee is entitled is one half of $ 8,136.00 less the$ 2,500.00 exemption allowable to Debtor, for a total amount to be turned overof $ 1,568.00.
For the reasons herein, but not for the reasons argued by either side, theCourt agrees with Debtor.
This Court has jurisdiction over this core proceeding pursuant to 28 U.S.C.Â§Â§ 157(b)(2)(A), (B), (E) and (O), and 1334(b), and the Standing Order ofReference in effect in the Eastern District of New York.
On February 28, 2009, Debtor filed a voluntary petition for relief underChapter 7 of the United States Bankruptcy Code ("Petition Date"). Debtor filed,inter alia, his Schedules and Statement of Financial Affairs ("SOFA"). [dkt item1] In his Schedule B, Debtor disclosed an "Anticipated Tax Refund" in the amountof $ 5,500.00, which he listed as jointly owned with his wife. In his ScheduleC, Debtor then claimed an exemption in $ 2,500.00 of the anticipated refund,pursuant to New York Debtor and Creditor Law Section 283. N.Y. DEBT. & CRED. LAWÂ§ 283 (McKinney 2009). The tax refunds arise from tax returns filed for year2008, which returns were filed and for which the associated taxes were paidprior to the Petition Date.
This Court held a hearing on the Motion on June 23, 2009. At the hearing, theparties agreed that, although the issue of refunds of prepetition taxes has beenraised in prior cases before this Court, and opinions on this issue have beenwritten in other districts, this is an issue of first impression because thereare no published opinions from the Eastern District of New York or bindingdecisions from the Second Circuit Court of Appeals. The parties also agreed thatthe facts are not in controversy as to which spouse is and has been the wageearner at all times relevant to the Motion, and agreed that this matter could beresolved on submissions, without an evidentiary hearing.
The Court directed the parties to submit briefing and supplementalsubmissions focusing on the applicability of the 50/50 ownership rule, asdescribed infra. Any additional briefing and evidence was to be submitted to theCourt by July 1, 2009, at which time this matter would be deemed undersubmission.
My wife, Madeline Spina, and I have a joint personal checkingaccount with Capital One Bank. See attached statement.
Madeline Spina and I have been married for twelve (12) years andare the parents of five year old twins. We own our house together, wefile joint income tax returns, share our cars, and in all respect havecombined household income and expenses with me being the wage earnerand my wife being the homemaker.
This Court must determine how to allocate refunds of income taxes paid priorto the petition date as between a debtor and a non-debtor spouse. The Trustee isentitled to turn over of the debtor's non-exempt portion of the tax refunds, butnot to the non-debtor spouse's portion, as the non-debtor's portion is notproperty of the bankruptcy estate. The Trustee asserts that the tax refunds areproperty of the estate under Section 541 of the Bankruptcy Code, and that theDebtor is obligated to turn over the full amount, less any allowable exemption,under Sections 521 and 541. The Debtor asserts that his non-debtor spouse isentitled to half of the refunds, and that this Court should adopt thepresumptive "50/50 ownership rule" ("50/50 Rule") discussed in In re Marciano,372 B.R. 211 (Bankr. S.D.N.Y. 2007), and limit the estate's interest to one-halfof the refund, less the Debtor's $ 2,500.00 exempt portion.
The three lines of analysis which have developed are referred to as: thewithholding rule; the income rule; and the 50/50 Rule referenced above. Each ofthese approaches analyzes Section 541(a), and also looks to applicable state lawto determine how the tax refund would be apportioned between the spouses outsideof bankruptcy.
The majority of courts follows the withholding rule, which, as the EighthCircuit's Bankruptcy Appellate Panel stated in Carlson, "allocates the joint taxrefund between the spouses in proportion to their respective tax withholding."In re Carlson, 394 B.R. at 494(citing In re Kleinfeldt, 287 B.R. 291, 292 (10thCir. B.A.P. 2002)). According to the withholding rule, a non-debtor spouse mayhave been employed but not have generated any withheld taxes, and, therefore,would have no right to any withheld taxes which are repaid to the taxpayer. Inre Kleinfeldt, 287 B.R. at 293.
In comparison, the income approach divides the refund according to the incomegenerated by each spouse. In re Carlson, 394 B.R. at 494. This view, also knownas the "Proportionate Income Rule," allocates the tax refund as a directpercentage of the earnings of the spouses.
The third approach, the 50/50 Rule, represents the minority view, and hasbeen followed by the bankruptcy courts in both the Southern and WesternDistricts of New York. See, e.g., In re Marciano, 372 B.R. 211 (Bankr. S.D.N.Y.2007); In re Barrow, 306 B.R. 28 (Bankr. W.D.N.Y. 2004). The 50/50 Rule appliesNew York state matrimonial law to first establish each spouse's rights tomarital property, and then considers what the division of marital property, suchas a tax refund, would be in a divorce proceeding. The 50/50 Rule creates arebuttable presumption that each spouse contributed equally to the household,including nonmonetary contributions, and, therefore, the refund should bedivided equally between the spouses. This presumption exists regardless of thetaxable earnings of the spouses, and regardless of the source of the taxableincome or tax withholding. As noted, however, the 50/50 rule creates a"rebuttable presumption of equal ownership to any joint tax refund." In reMarciano, 372 B.R. at 214 (citing In re Barrow, 306 B.R. at 31). To overcome thepresumption, evidence must be presented that the "couple's 'present conduct orhistory of financial management' suggests separate financial affairs." Id.
Whether the monthly bills of the debtors' are paid out of jointaccounts; Whether the debtor considers the responsibility for payingthe household bills to be a joint responsibility; Whether the accountsof the debtor and non-debtor spouse have always been held jointly;Whether the debtor and non-debtor spouse have ever held individualaccounts at any point during the marriage; Whether both husband andwife have equal access to funds in accounts; Whether their joint taxrefunds have always been deposited into joint checking accounts withboth debtors having full access to the funds; and the purpose or useto which the tax refunds have traditionally been applied (e.g., forhousehold expenses or educational expenses for their children).
In re Hejmowski, 296 B.R. 645, 650 (Bankr. W.D.N.Y. 2003); see also Marciano,372 B.R. at 217 (utilizing these factors to determine that the debtor's courseof conduct with regard to the marital assets did not overcome the 50/50 Rulepresumption); In re Barrow, 306 B.R. at 31(using the same analysis to determinethe refund should be divided equally).
Both the Marciano and Barrow courts referred to New York matrimonial law forguidance. Under Section 236 of the New York Domestic Relations Law, any propertyacquired during a marriage is owned equally by the spouses in an "economicpartnership," and is thus available for equitable distribution upon dissolutionof the union. N.Y. Dom. REL. LAW Â§ 236 (McKinney 2009); see also Musso v.Ostashko, 468 F.3d 99, 102 (2d. Cir. 2006); Marciano, 372 B.R. at 215. Under NewYork law, "as a general rule, the refund on a joint tax return is a joint assetthat spouses own 'in equal shares'. . . [and u]nder the current tax code, [acourt] simply cannot assume that any refund represents income for one spouse orthe other." Marciano, 372 B.R. at 216 (quoting Barrow, 306 B.R. at 31).Consequently, under the 50/50 Rule, "an income tax refund should be splitequally between spouses for purposes of allocating property of the estatepursuant to 11 U.S.C. Â§ 541." Marciano, 372 B.R. at 216.
This Court has determined that a different approach should be taken to thetax refund analysis which harmonizes applicable tax, bankruptcy, and statemarital property law. In this Court's view, spouses filing joint returns whoequally share the liability for payment of the taxes should equally share thebenefit of any tax refund.
26 U.S.C. Â§ 6013(a)(emphasis supplied). When spouses file a joint return,subsection (d)(3) of Section 6013 creates joint and several liability for thetaxes due. 2 Married couples who decide to file jointly may do so for any numberof reasons, including receiving the economic value of any tax benefits derivedfrom filing jointly.
(3) if a joint return is made, the tax shall be computed on the aggregateincome and the liability with respect to the tax shall be joint and several.
The IRC does provide statutory relief from the joint and several liabilityprovision of Section 6013(d)(3). A spouse may be relieved from liability underprocedures established for what has come to be referred to as the innocentspouse exception, as established under Section 6015(b). 3 In addition, taxpayerswho are no longer married or are legally separated may apply for relief underSection 6015(c). Compare Shafman v. U.S. Dep't of the Treasury (In re Shafman),267 B.R. 709, 714-717 (Bankr. N.D. W. Va. 2001)(finding that debtor seekingdetermination of dischargeability of income tax liability did not qualify forinnocent spouse relief under Section 6015(b), but she did qualify for limitedliability under Section 6015(c)), with In re Hinckley, 256 B.R. 814 (Bankr. M.D.Fla. 2000)(finding the debtor-wife entitled to "innocent spouse" relief fromliability for a joint tax debt arising from a jointly filed return, on theorythat she had been "coerced" into signing returns that failed to report certainpension benefits as income).
then the other individual shall be relieved of liability for tax(including interest, penalties, and other amounts) for such taxableyear to the extent such liability is attributable to suchunderstatement.
Federal tax courts addressing joint and several tax liability under the IRCoften consider the innocent spouse exception. See, e.g., Nihiser v. C.I.R., T.C.Memo 2008-135, 2008 WL 2120983 (Tax Ct. May 20, 2008) (granting innocent spousejoint tax liability relief to stay-at-home mom due to husband's actions);Clarke-Lewis v. C.I.R., T.C. Summ. Op. 2008-14, 2008 WL 360715 (Tax Ct. Feb. 11,2008 )(denying relief due to spouse's written agreement to assume the joint taxliability).
Under New York law, taxpayers who file joint returns are jointly andseverally liable for the taxes owed. See N.Y. Tax Law Â§ 651 (McKinney 1999).Either spouse may seek to employ the exceptions and limitations to this jointand several liability available under IRC Section 6015. See N.Y. Tax Law Â§ 654(McKinney 1999)(making provisions of IRC Â§ 6015 applicable for jointly filedstate income tax returns). Other states haves similar provisions. See, e.g., Inre James, 308 B.R. 569, 570-72 (Bankr. S.D. Ala. 2002)(applying Alabama taxcode, which paralleled IRC, and denying innocent spouse relief to a debtorclaiming she did not contribute income to the jointly filed return assessing taxliability).
Under the Bankruptcy Code, because spouses have joint and several liabilityfor the taxes due under joint returns, neither spouse has an allowable claim forsubrogation against the other for taxes paid, but may assert a contributionclaim for one-half of the sum paid to the taxing authorities. See 11 U.S.C. Â§Â§502, 509; see also In re Schuler, 354 B.R. 37, 41-42 (Bankr. W.D.N.Y. 2006)(discussing theories of subrogation and contribution under the Bankruptcy Codeand New York law). The Schuler court addressed these issues with respect to adeceased debtor's wife who sought reimbursement from the debtor's estate for thefull amount she paid toward the couple's joint tax liability. In re Schuler, 354B.R. at 41. The court found that the debtor's wife should have asserted herinnocent spouse defense to the taxing authorities prior to paying the obligationin full, and stated that the court "must apply the outcome [she] accepted in herdealings with the Internal Revenue Service." Id. The court further found thedebtor's wife had no right to subrogation and could only recover one-half of thetaxes she paid as a claim against the debtor's estate. Id. at 41-42.
Under the IRC, spouses filing joint returns share the burden of the taxliability, regardless of who generates the taxable income. Moreover, spouses mayfile jointly "even though one of the spouses has neither gross income nordeductions." IRC Â§ 6013(a). Federal tax law provides a mechanism for one spouseto reduce or eliminate their joint and several tax liability under establishedIRC law and procedures. New York tax law mirrors federal tax law on theseissues. Federal bankruptcy law provides that neither spouse can assert asubrogation claim against the other in a bankruptcy case for any paid taxes, butone spouse can assert a contribution claim for one-half of the sum that has beenpaid to the taxing authorities. Given these principles, it seems entirelyconsistent for spouses who file joint returns to share equally in any tax refundreturn, regardless of who earned how much of the taxable income, and regardlessof who generated the claimed deductions. Thus, any tax refund presumptivelybelongs to the spouses equally. This outcome is consistent with Section 541(a)of the Bankruptcy Code, Sections 6013 and 6015 of the IRC, and Section 236 ofNew York Domestic Relations Law. However, the Trustee may rebut this presumptionif, had the taxes not been paid, the non-debtor spouse could have limited oravoided liability under the innocent spouse exception to the tax liability underSection 6015(b) of the IRC, or could have qualified for limited liability underSection 6015(c) for taxpayers no longer married or taxpayers legally separatedor not living together.
This case presented an issue of first impression in this district, and thisCourt's analysis is also one of first impression. This Court recognizes thebriefing and submissions of the parties addressed the 50/50 Rule and whether itshould be adopted by this Court. Therefore, the parties should be afforded theopportunity to submit any further submissions on whether the Debtor or Ms. Spinacould have avoided or reduced liability for the taxes owed on the 2008 taxreturns at issue, if those taxes had not been paid. Any supplemental submissionsshall be due twenty (20) days from entry of this opinion. Absent furtherbriefing, this Court will enter an order directing Debtor to turn $ 1,568.00over to the Trustee.

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b).This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Robert L. Hess, Judge. Affirmed.
Counselor & Advocate at Law, James S. Link; and Leta Schlosser for Cross-complainant and Appellant.
Barry L. Van Sickle for Cross-defendant and Appellant.
Cross-complainant Leta Schlosser (Schlosser) worked for a firm that represented Lawrence D. Wollersheim (Wollersheim) in his action against the Church of Scientology.Later, on an independent basis and pursuant to a contingency fee agreement, she advised his attorneys in appellate and collection matters. Wollersheim voided that contract because she failed to comply with Business and Professions Code section 6147. She thereafter tried a claim against Wollersheim to recover reasonable attorney fees based on quantum meruit. The jury found that the value of her services was $497,700 but that the amount should be reduced by $184,470 due to Schlosser’s unethical conduct. Schlosser applied for prejudgment interest on her net recovery, $313,230. Her application was denied.On appeal, Schlosser seeks either an additur or a remand for a new trial on damages, claiming that evidence of her unethical conduct was inadmissible and prejudiced her. Separately, she seeks a reversal of the denial of her application for prejudgment interest.After review, we conclude that Schlosser failed to demonstrate reversible error.
Wollersheim filed a cross-appeal to challenge the trial court’s denial of his motion for judgment notwithstanding the verdict.Based on the statute of limitations applicable to quantum meruit claims, he argues that Schlosser was barred from recovering for the services that she performed more than two years before she filed her cross-complaint seeking quantum meruit. Wollersheim’s cross-appeal lacks merit.Schlosser’s claim accrued in 2002, the same year she filed it.
We affirm in all respects.
Wollersheim hired Schlosser in 1990 to assist his attorneys in their ongoing litigation and collection efforts against the Church of Scientology.Due to her fear of the Church of Scientology, Schlosser’s work on the case was conditional on Wollersheim keeping her involvement a secret.
On May 9, 2002, the Church of Scientology interpleaded $8,674,843 in satisfaction of Wollersheim’s judgment.Schlosser requested payment for her services, but she was not paid.
Wollersheim’s answer provided a general denial and interposed 13 affirmative defenses.Among other affirmative defenses, Wollersheim alleged that Schlosser’s action was barred by the statute of limitations in Code of Civil Procedure section 339, and also the doctrine of unclean hands.He further alleged that Schlosser “is barred from recovery of fees as a result of her acts of impropriety inconsistent with the character of the legal profession as a result of her violations of the California Rules of Professional Conduct, including but not limited to violations of . . . Rule 3-300, Rule 3-700(d), 3-500, and 4-200.”Additionally, according to Wollersheim, Schlosser’s claim for attorney fees should be limited or barred because the claim was unconscionable, she damaged him by converting his papers, records and documents, and she interfered with his prospective economic advantage.Finally, he alleged that if Schlosser was awarded less by the jury than by the arbitrators in her mandatory fee arbitration, he was entitled to an offset for all costs and attorney fees he incurred following Schlosser’s rejection of the arbitration award.
Schlosser filed four motions in limine.In motion in limine No. 1, she requested exclusion of evidence that she committed an ethical violation by failing to comply with the requirements for written fee agreements.The second motion, motion in limine No. 2, argued that the trial court should exclude evidence that she committed various acts of impropriety, and that she damaged Wollersheim by converting his papers, records and documents.Motion in limine No. 3 urged the trial court to exclude evidence of any losses suffered by Wollersheim as a result of funds being interpleaded due to her fee claim.Finally, motion in limine No. 4 argued that evidence relating to the arbitration of the fee dispute before the Los Angeles County Bar Association would be improper.The trial court granted motion in limine No. 3 and denied the others.
Schlosser offered evidence of what she considered her reasonable fee for representing Wollersheim.Wollersheim put on evidence that Schlosser’s fee should be reduced because she engaged in unethical conduct, and she was more of a distraction than a help to Wollersheim’s legal team.
Craig Stein (Stein), an attorney who represented Wollersheim from 1994 to 2002, testified on Wollersheim’s behalf.Schlosser’s role in the case was to provide Stein and other attorneys with the historical background of the case, to explain what happened in the record, and to identify what the facts were.She constantly generated memos, none of which Stein requested.For the most part, Stein threw the memos away because they were irrelevant.She compulsively requested copies of everything.Though they were friendly, Schlosser was more of a distraction than a help.At one point he stopped taking her calls because “she was making me nuts.”Stein did not ask for Schlosser’s assistance until the Spring of 2002.The one assignment he gave her—putting together a witness list—was something that a paralegal could do.
According to Stein, Schlosser provided a “fair portion” of documents that were used in connection with several motions to amend the judgment.Included in those documents were portions of trial transcripts she claimed to have found at the trial court, federal court or appellate court.But when she sued Wollersheim for her attorney fees and responded to pretrial discovery, she produced a “100-plus volumes of the transcript.”After she sued, Stein asked her to return Wollersheim’s files and records.She refused.
According to Sall, Schlosser violated California Rules of Court, rule 3.500.It requires an attorney to communicate with the client about any significant developments that relate to the representation.She failed to tell Wollersheim that she lost her motion to obtain attorney fees from the Church of Scientology.She also failed to tell him what she intended to charge for her services, and that she was thinking of charging him a multiplier.Separately, she attempted to coerce an unconscionable fee by claiming entitlement to $4 or $5 million.Sall considered her representation of the potential fee “shocking” and “unconscionable.”In essence, she was trying to coerce Wollersheim into paying her a larger fee than she was entitled to receive.Further, she did not provide Wollersheim with information to substantiate her request.Sall classified Schlosser’s attempt to coerce a fee as a form of moral turpitude.
Sall opined about what hours Schlosser could recover for, and the value of her services given her usefulness to Stein and Leipold and her agreement with Wollersheim to charge $150 an hour.
The jury was given a special verdict form.Question No. 3 asked, “Do you find that [Schlosser] committed any violations of the Rules of Professional Conduct or other acts of impropriety inconsistent with the character of the profession which impacted those services sufficiently as to justify a reduction in the reasonable value of her services?”Question No. 4 asked how much Schlosser’s award should be reduced due to her improper conduct.The jury found that Schlosser’s reasonable fee was $497,700, and that the fee should be reduced by $184,470.
Schlosser moved for prejudgment interest and judgment notwithstanding the verdict or a new trial.Wollersheim also moved for judgment notwithstanding the verdict.The motions were denied.
Subsequently, the trial court dismissed Wollersheim’s action pursuant to an anti-SLAPP motion filed under Code of Civil Procedure section 425.16.In its written order, the trial court concluded that Wollersheim’s complaint related to the separate litigation between the parties over attorney fees.As a result, Wollersheim’s action was barred by the litigation privilege.
Wollersheim contends that this appeal should be dismissed because she is splitting her quantum meruit claim by prosecuting this appeal after she collected on the reduced judgment.This issue is parsed below.
B.There is no evidence that Schlosser collected the reduced judgment.
According to Wollersheim, Schlosser collected the judgment by levy of writ of execution.To prove this, he refers to footnote 1 of an order dated April 11, 2007, which he states notes the deduction of $267,479.16 from the amount distributed to Wollersheim in satisfaction of the judgment.
We have two responses.If, as represented, the trial court deducted $267,479.16 from the amount distributed to Wollersheim, this would not establish that Schlosser executed on her judgment.It would only establish that the trial court was preserving that portion of the interpleaded funds.But this analysis is moot.We have no evidence of the purported April 11, 2007, order.All we are provided with is a March 26, 2007, order that does not mention Schlosser.Regardless, Schlosser is only attempting to augment her judgment, so the motion lacks merit.
The motion to dismiss is denied.
On the tail end of Schlosser’s appeal, she argues that the trial court erred when it refused to award prejudgment interest.That ruling must not be disturbed on appeal unless we find that the trial court abused its discretion.(Moreno v. Jessup Buena Vista Dairy (1975) 50 Cal.App.3d 438, 448 (Moreno).)The bulk of Schlosser’s appeal presents a series of legal issues.In accord with settled appellate principles, we review those issues in the first instance.(Rayyis v. Superior Court (2005) 133 Cal.App.4th 138, 150.)According to Schlosser, the reduction in damages must be reversed because of the res judicata effect of the Wollersheim action, because her alleged misconduct was protected by the litigation privilege, and because Huskinson & Brown v. Wolf (2004) 32 Cal.4th 453 (Huskinson) only permits a reduction of a reasonable attorney fee based on egregious conduct not present here.
Schlosser contends that the verdict reduction was based on affirmative defenses that are barred by the res judicata effect of the Wollersheim action.As a result, she argues that the reduction must be reversed.
2.Impact of the Wollersheim action.
While Schlosser’s action was pending, Wollersheim initiated the Wollersheim action.After judgment was entered in Schlosser’s action and she noticed her appeal, the Wollersheim action was dismissed pursuant to an anti-SLAPP motion, and the judgment became final.The question arises whether claim preclusion or issue preclusion bars Wollersheim’s affirmative defenses.
Schlosser also cites Alpha Mechanical, Heating & Air Conditioning v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319, 1330 (Alpha Mechanical) and Walsh v. West Valley Mission Community College Dist. (1998) 66 Cal.App.4th 1532, 1545 (Walsh) to support her argument.But for the argument at hand, these cases are empty vessels.Alpha Mechanical involved claims in a cross-complaint; it did not involve affirmative defenses.Walsh refused to apply claim preclusion or issue preclusion to bar a party from litigating an answer that contained a general denial but did not contain affirmative defenses.
None of these cases apply claim preclusion to affirmative defenses.This is with good reason.Affirmative defenses are not claims for money, nor are they requests for equitable relief in the nature of quiet title or accounting.They are designed for one thing:to defeat or reduce liability.
The question is whether the issues raised by the affirmative defenses were litigated in the Wollersheim action.
Before delving into our analysis, we must address Torrey Pines.While we find that Torrey Pines establishes that the dismissal of an action could preclude the second time around litigation of issues in connection with affirmative defenses in a subsequent action, we conclude, as did the dissent in Torrey Pines, that the traditional rules of collateral estoppel must be applied.Torrey Pines provided no rationale for its departure from that body of law.And, regardless, we are bound by our Supreme Court’s decision in Garcia regarding the elements.
Now we turn to Schlosser’s arguments.
Our waiver analysis requires an additional point of law.Neither party analyzed the elements of collateral estoppel, but this does not require us to give them the opportunity to file further briefs.Schlosser raised res judicata in her opening brief, and she recognized that collateral estoppel was an issue.As a result, she had every opportunity to brief the matter.
The same analysis applies to other issues that Schlosser contends should be barred by the dismissal of the Wollersheim action.
We reserve our final word for Schlosser’s contention that a retraxit is sufficient to collaterally estop affirmative defenses.A retraxit is simply an antiquated name for a dismissal with prejudice.(Torrey Pines, supra, 216 Cal.App.3d at p. 820.)The Torrey Pines court did not hold that a retraxit, absent principles of claim preclusion or issue preclusion, bars relitigation of issues.Indeed, “a court will apply principles of res judicata to resolve precisely what causes of action or issues are barred as a result of retraxit.”(Alpha Mechanical, supra, 133 Cal.App.4th at p. 1331.)Thus, retraxit law does not aid Schlosser’s cause.
Schlosser contends that her failure to communicate with Wollersheim, her failure to share the trial transcript, her attempt to coerce an unconscionable fee and other alleged acts of misconduct are protected by the litigation privilege set forth in Civil Code section 47, subdivision (b).
To raise this argument, Schlosser had to argue it below.She does not contend that she did so, nor does she contend that the trial court failed to apply the litigation privilege. The litigation privilege was not asserted in her motions in limine Nos. 1, 2 and 4.She tells us, on page 7 of her opening brief, that she objected that the ethics violations were inadmissible.Other than the motions in limine, she cites to the entirety of the augmented record, which is 38 pages, and pages 3044 to 3096 of the reporter’s transcript, all without pinpoint cites. We reviewed those pages of the record.They do not contain a discussion of the litigation privilege. To permit a party to raise a new issue that was not raised in the trial court would not only be unfair to the trial court, but manifestly unjust to the opposing party.(North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29.)As a result, we need not consider whether Schlosser’s conduct was protected by the litigation privilege.
We note that Schlosser did not argue that the failure to share the trial transcript with Wollersheim or his other attorneys was a protected act.Nor did she cite any cases for the specific proposition that the litigation privilege insulates an attorney from liability for breaching her fiduciary duties to a client.We doubt there are any, for otherwise no client could sue an attorney for litigation malpractice.This would not comport with equity, policy or common sense.
In Huskinson, our Supreme Court held that a violation of California Rules of Court, rule 2.200—which requires client consent for a fee splitting agreement—does not bar an attorney from recovering a reasonable fee.(Huskinson, supra, 32 Cal.4th at p. 461.)According to Schlosser, Huskinson prohibits the reduction of her reasonable fee based on her unethical conduct.
As with the litigation privilege, there is no indication from Schlosser that she raised Huskinson below.
Our analysis could stop here.
According to Schlosser, Huskinson restated the law “that violations of the Rules of Professional Conduct may reduce awards of attorney fees in quantum meruit only where the attorney has effectively defrauded the client or committed the most egregious acts of representing conflicting or adverse interests.” But, as we read it, Huskinson did not pronounce any such rule. It merely noted that cases “in which courts have disallowed quantum meruit recovery to attorneys who violated one of the Rules of Professional Conduct . . . involved violations of a rule that proscribed the very conduct for which compensation was sought, i.e., the rule prohibiting attorneys from engaging in conflicting representation or accepting professional employment adverse to the interest of a client or former client without the written consent of both parties.[Citations.]”(Huskinson, supra, 32 Cal.4th at p. 463.)Huskinson does not say that it is impermissible to reduce a quantum meruit award if an attorney failed to communicate material facts (such as Schlosser’s possession of the trial transcript) which, if known, may have made the representation moot.Nor does it state that other ethics violations cannot be used as reducers.
Schlosser also cites Fergus v. Songer (2007) 150 Cal.App.4th 552 (Fergus), which held that whether a contingency fee agreement and modification violated ethical codes and rules of practice was irrelevant in determining the reasonable value of an attorney’s services.(Id. at p. 577.)This holding, however, has no bearing on whether other types of ethical violations were relevant factors.
Even if we accepted Schlosser’s version of the law, she concedes that fraudulent conduct can be used to reduce a quantum meruit award.Her failure to disclose her possession of the trial transcript constitutes a fraud that, according to testimony, made her seem necessary when she was not.Schlosser does not explain why this one fact cannot support the reduction of her award.While silence may be golden at a solemn event, it is the exact opposite in an appellate brief.
We find it telling that Schlosser focuses on peccadilloes rather than serious conduct.For example, while ignoring the trial transcript issue, she attempts to curry a reversal by focusing on her fee agreement’s lack of compliance with Business and Professions Code section 6147, and on her failure to deliver a contingency bill to Wollersheim within 10 days.From this we conclude that Schlosser cannot cogently argue that her failure to share the trial transcript was not a fraud that warranted a reduction in her quantum meruit recovery.
Schlosser argues that she was entitled to prejudgment interest pursuant to Civil Code section 3287, subdivision (b).She claims that the trial court failed to exercise its discretion under the statute, and that even if it did, that discretion was abused.For reasons discussed below, we disagree.
2.The trial court exercised its discretion.
The trial court assumed it could award prejudgment interest but declined to do so.Under any definition, this was an exercise of discretion.
3.The trial court did not abuse its discretion.
The problem with Schlosser’s argument is that she did not support it with case law discussing when a trial court is required to award, or is permitted to deny, discretionary prejudgment interest.
In any event, there was no abuse of discretion.
Prejudgment interest is normally denied “based upon the rationale that it is unreasonable to expect a defendant to pay a debt before he or she becomes aware of it or is able to compute its amount.[Citations.]”(Lewis C. Nelson & Sons, Inc. v. Clovis Unified School Dist. (2007) 90 Cal.App.4th 64, 69.)Civil Code section 3287, subdivision (b) allows prejudgment interest in order to balance “concern for fairness to the debtor against the concern for full compensation to the wronged party.[Citations.]”(Lewis C. Nelson & Sons, Inc. v. Clovis Unified School Dist., supra, at p. 69.)In trying to strike the right balance, courts have considered delay in bringing a case to trial and the nature of the litigation (Moreno, supra, 50 Cal.App.3d at p. 448 [prejudgment interest properly denied because delay was not excessive and the bona fide dispute was complicated]) and whether the plaintiff turned down a settlement offer that was larger than the verdict (Elliano v. Assurance Co. of America (1975) 45 Cal.App.3d 170, 183 [denial affirmed]).
In opposition to the motion for prejudgment interest, Wollersheim’s attorney declared in May or June of 2002, when Schlosser was unable to present invoices for her services, Wollersheim offered $225,000.Before the mandatory fee arbitration on June 23 and June 25, 2003, Wollersheim offered $425,000.When the arbitrator awarded Schlosser $281,566, Wollersheim offered to pay that amount, less $100,000 that was awarded by the trial court.Schlosser rejected each of the offers.She then proceeded to get an award of only $313,230, which was more than $100,000 less than one of the offers.
The record suggests that Wollersheim did not know the extent of his debt, if any, because Schlosser kept changing her demand.This is a strong factor cutting against prejudgment interest.There is no indication that Wollersheim caused excessive delay, or that the dispute was not bona fide and complicated.The jury found that Schlosser violated the Rules of Professional Conduct or committed other acts of impropriety inconsistent with the character of the legal profession and that those violations or acts justified a reduction in the reasonable value of her services.By inference, this included an implied finding that Schlosser concealed her possession of the trial transcript, and that if she had turned it over to Wollersheim’s other attorneys, then Wollersheim would not have needed her services.These additional factors, in our view, amply support the trial court’s decision.
Schlosser does not address any of these issues, which were all fair game for the trial court to consider.On this record, we cannot conclude that the trial court abused its discretion in denying prejudgment interest.
Wollersheim contends that the two-year statute of limitations in Code of Civil Procedure section 339 barred Schlosser’s claim for quantum meruit.Schlosser, on the other hand, contends that her claim did not accrue until the Church of Scientology paid the judgment in May 2002.
The parties agree that they had a contract, but that it was voided under Business and Professions Code section 6147.Wollersheim testified that he entered into a contingent agreement with Schlosser, and that she was supposed to be paid only if the Church of Scientology paid.The parties contemplated a time of payment—upon collection of the judgment.
In our view, Wollersheim’s testimony supported a finding that Schlosser’s claim did not accrue until the judgment was paid in May 2002.Only then was she entitled to compensation.To defeat this analysis, Wollersheim cites Fergus, supra, 150 Cal.App.4th at p. 573.There, the court held that if a contingency fee contract is nullified, the trier of fact is not permitted to consider the contingent nature of the contract in determining a reasonable fee.This prevents the attorney from obtaining the benefit of the voided contract.Fergus does not change our analysis.The contemplated time for payment is dispositive of the accrual issue.
The parties shall bear their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
Wollersheim filed a motion to dismiss Schlosser’s appeal.As we discuss in the body of our opinion, that motion is denied.
Our statement of facts is limited because Schlosser’s appeal involves a trial and she rarely cited to the reporter’s transcript in her statement of facts.At times we have utilized citations to the reporter’s transcript provided by Wollersheim.As a result, the trial evidence referred to is his.
Schlosser requested that we take judicial notice of Wollersheim’s separate action. We hereby grant that request.
According to Schlosser, Wollersheim filed and then abandoned an appeal of the Wollersheim action.Remittitur was issued on November 16, 2006.
The litigation privilege was asserted in connection with motion in limine No. 3, which was granted.That motion only pertained to evidence regarding the arbitration of the parties’ fee dispute. Moreover, the litigation privilege was not argued in Schlosser’s motion for judgment notwithstanding the verdict or new trial.
We hereby grant Schlosser’s motion to augment the record to include the reporter’s transcript from the proceedings on December 12, 2005, and February 10, 2005.
Our review of the record indicates that Schlosser argued Huskinson in connection with a motion to exclude portions of expert testimony.

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1. The name of this association is „Europäische Gesellschaft für das Studium von Literatur, Kultur und Umwelt / European Association for the Study of Literature, Culture and the Environment“ e.V.
2. The association will be entered in the registry of associations in Bonn.
3. The accounting year is the calendar year.
1. The purpose of the association is the creation of an international forum for the promotion of education in the fields of literary, cultural and environmental studies and the facilitating of dialogue and interdisciplinary cooperation between those disciplines.
b) publishing an annual newsletter as well as other publications, which may or may not appear periodically.
c) cooperation and exchange with other associations whose purposes and activities benefit the public and are consistent with the purpose of this association.
2. All activities of this association will be non-profit and for the public benefit.
3. The funds of the association must be used exclusively for purposes covered by the bylaws. The members will receive no grants or donations.
4. Nobody shall benefit from remunerations by the association which are either disproportionally high or unrelated to the association’s purpose.
5. There will be no refunds if a member leaves the association or if the association is dissolved.
6. The purpose of the association as laid down in the bylaws can be changed only in accordance with § 2.1.
1. Regular membership is open to natural persons who subscribe to the purpose of the organization as set forth in these bylaws.
2. Nominal membership is open to natural and legal persons who support the association by paying dues.
written application. If the committee denies membership, the applicant can file a complaint, which will be brought before the annual general meeting (AGM). The AGM can overrule the decision of the executive committee.
4. Membership ceases when the member leaves the association, is expelled or dies; if the member is a legal person, membership also ceases membership also ceases on the loss of legal status. A member can leave the organization at any time, however, he or she will still have to pay the annual dues for the current accounting year. To leave the association, the member has to announce his leaving with a written statement to the executive committee.
5. The executive committee can decide to expel a member if the member does not pay his or her annual dues for twelve months despite a reminder or if the member’s conduct gravely compromises the association’s interests. Within 14 days after notification, the expelled member can file a complaint, which will be brought before the AGM for a final decision. Until the next AGM where his or her case will be settled, all rights and duties of the member are suspended.
6. Only regular members have the right to vote in the AGM.
7. The names and addresses of all members will be published in the annual newsletter.
1. The AGM consists of all regular members, each of whom has one vote.
2. The AGM is convened at least once a year by a written announcement of the executive committee which must include the agenda. There must be an interval of at least 14 days between the announcement and the date of the assembly.
3. If warranted by the interests of the association, an extraordinary assembly can be convened. On request of at least 10% of the membership, the executive committee has to convene an extraordinary assembly within six weeks. The member’s request must state explicitly the subject of the session.
4. The AGM has a quorum regardless of attendance if all members were properly invited. It is chaired by the executive committee. Decisions are voted on by raising hands and passed with a simple majority. In case of a tie the move is rejected.
5. In divergence from § 5.4, amendments of these bylaws or decisions concerning the dissolution of the association require a three-quarters majority, as stipulated in § 33 BGB. Intended amendments to the bylaws must be circulated together with the invitation to the meeting.
6. All decisions of the AGM are to be recorded in the minutes, which must be signed by the keeper of the minutes and two members of the executive committee. The minutes are published in the annual newsletter.
1. All duties are incumbent on the AGM, which is the highest decision-making body of the association, unless they are assigned to one of the other bodies by these bylaws.
The AGM elects from its ranks the executive committee and the advisory board. The persons who gain the largest number of votes are elected. The ballot is secret.
2. The AGM can vote a member of the executive committee or of the advisory board out of office. In divergence from § 6.1., this requires a simple majority of all members.
3. The AGM votes on decisions by the executive committee to expel a member.
4. The AGM approves of the executive committee’s actions after receiving and reviewing the annual reports of the executive committee and the auditor.
5. The AGM votes on the annual budget proposed by the executive committee.
6. The AGM votes on amendments of the bylaws and the dissolution of the assembly.
7. In order to delegate its authority to the executive committee, it must receive the annual reports of the executive committee and the auditor in written form. It appoints an auditor who must not be a member of the executive committee or any other body whose members are appointed by the committee. The auditor audits the association’s accounts, including the annual report, and reports the results to the AGM. The auditor must have access to all bills and accounting documents of the association.
1. The executive council consists of the chair, the vice chair and the treasurer.
2. The executive council is elected for a period of two years by the AGM in a secret ballot. It stays in office after its term has run out until a new executive council is elected. If a member of the executive council retires before the end of his/her term, the executive elects a successor from the advisory board. The executive council meets at least once a year. It has a quorum if all members are present.
If necessary, the executive council can reach a decision by phone or written communication if all its members agree to this procedure. Decisions which are made in this fashion must be recorded in written form and signed by all members of the executive council.
3. The executive council conducts the affairs of the association. It will plan, organize and coordinate the association’s projects and implement the decisions of tghe AGM. It draws up the association’s budget.
4. The chief executive as stipulated by § 26 Abs. 2 BGB is the chair.
5. Amendments of the bylaws which are requested by the legal or fiscal authorites for the association to meet legal provisions can be passed by the executive without consulting the AGM. Such amendments must be announced at the next AGM.
6. The decisions of the executive council are recorded in the minutes. All members of the association have access to the minutes.
1. With due consideration of the academic disciplines represented in the association and the geographic distribution of its membership, the AGM elects an advisory board consisting of up to ten members, whose terms are three years.
2. The advisory board assists the executive council. The committee must inform the advisory board of its decisions and activities at appropriate intervals.
1. Der Verein trägt den Namen „Europäische Gesellschaft für das Studium von Literatur, Kultur und Umwelt / European Association for the Study of Literature, Culture and the Environment“ e.V.
2. Die Gesellschaft hat ihren Sitz in Bonn. Sie soll in das Vereinsregister in Bonn eingetragen werden und führt sodann den Zusatz e.V.
1. Zweck der Gesellschaft ist die Schaffung eines internationalen Forums zur Förderung der Bildung auf dem Gebiet der Literatur-, Kultur- und Umweltwissenschaften sowie des Dialogs und der interdisziplinären Zusammenarbeit zwischen diesen Disziplinen.
c) die Zusammenarbeit und den Austausch mit als gemeinnützig anerkannten Gesellschaften, die dem Zweck des Vereins verbunden sind.
3. Mittel des Vereins dürfen nur für die satzungsgemäßen Zwecke verwendet werden. Die Mitglieder erhalten keine Zuwendungen aus Mitteln des Vereins.
4. Es darf keine Person durch Ausgaben, die dem Zweck der Körperschaft fremd sind, oder durch unverhältnismäßig hohe Vergütungen begünstigt werden.
5. Bei Ausscheiden eines Mitgliedes aus dem Verein oder bei Vereinsauflösung erfolgt keine Rückerstattung etwa eingebrachter Vermögenswerte.
6. Eine Änderung des Vereinszwecks darf nur im Rahmen des in § 2.1. gegebenen Rahmens erfolgen.
1. Ordentliche Mitglieder der Gesellschaft können natürliche Personen werden, die den Aufgaben und der Zielsetzung der Gesellschaft verbunden sind.
2. Fördernde Mitglieder können natürliche und juristische Personen werden, die die Gesellschaft durch Beiträge unterstützen.
3. Die Mitgliedschaft wird auf schriftlichen Antrag durch Beschluß des Vorstandes erworben. Gegen eine ablehnende Entscheidung des Vorstandes kann der Antragsteller Beschwerde einlegen, über die die nächste Mitgliederversammlung entscheidet.
4. Die Mitgliedschaft endet durch Austritt, Ausschluß oder Tod, bei juristischen Personen auch durch Verlust der Rechtspersönlichkeit. Die Austrittserklärung ist jederzeit möglich, entbindet aber nicht von der Beitragspflicht für das laufende Geschäftsjahr. Sie erfolgt durch schriftliche Erklärung gegenüber dem Vorstand.
5. Der Vorstand kann die Auschließung eines Mitglieds beschließen, wenn dieses trotz Mahnung mit dem Beitrag für 12 Monate im Rückstand bleibt, sein Verhalten in grober Weise gegen die Interessen der Gesellschaft verstößt oder die Voraussetzungen der Satzung nicht mehr erfüllt sind. Der Ausgeschlossene kann innerhalb von 14 Tagen nach Zustellung des Ausschließungsbescheides Berufung einlegen, die der nächsten Mitgliederversammlung zur entgültigen Entscheidung vorgelegt wird. Bis zur auf den Ausschluß folgenden Mitgliederversammlung ruhen die weiteren Rechte und Pflichten des Mitglieds.
6. Stimmrecht in der Mitgliedsversammlung haben nur ordentliche Mitglieder.
7. Namen und Adressen der Mitglieder werden im Mitteilungsblatt veröffentlicht.
1. Der Mitgliederversammlung gehören alle Vereinsmitglieder mit je eine Stimme an.
2. Mitgliederversammlungen werden mindestens einmal im Jahr vom Vorstand unter Mitteilung der Tagesordnung schriftlich einberufen. Die Einladungsfrist beträgt 2 Wochen.
3. Eine außerordentliche Mitgliederversammlung ist einzuberufen, wenn es das Vereinsinteresse erfordert. Auf schriftliches Verlangen von mindestens 10% aller Vereinsmitglieder hat der Vorstand binnen 6 Wochen eine außerordentliche Mitgliederversammlung einzuberufen. Dem Antrag der Mitglieder muß der gewünschte Tagesordnungspunkt zu entnehmen sein.
4. Die Mitgliederversammlung ist bei ordnungsgemäßer Einladung ohne Rücksicht auf die Zahl der anwesenden Erschienenen beschlußfähig. Als Versammlungsleiter fungiert der Vorstand. Beschlüsse werden, sofern die Versammlung nicht etwas anderes bestimmt, offen durch Handaufheben mit Stimmenmehrheit getroffen. Bei Stimmengleichheit gilt ein Antrag als abgelehnt.
5. Zu Satzungsänderungen und zu Beschlüssen über die Auflösung des Vereins ist abweichend von § 5.4. und in Übereinstimmung mit § 33 BGB eine ¾-Mehrheit der in der Mitgliederversammlung abgegebenen Stimmen erforderlich.
Geplante Satzungsänderungen sind den Mitgliedern zusammen mit der Einladung zur Mitgliederversammlung zuzusenden.
6. Über die Beschlüsse der Mitgliederversammlung ist ein Protokoll anzufertigen und von zwei Vorstandsmitgliedern und dem Protokollanten zu unterzeichnen. Das Protokoll wird im Mitteilungsblatt veröffentlicht.
1. Die Mitgliederversammlung als das oberste beschlußfassende Vereinsorgan ist grundsätzlich für alle Aufgaben zuständig, sofern bestimmte Aufgaben gemäß dieser Satzung nicht einem anderen Vereinsorgan übertragen wurden.
Die Mitgliederversammlung wählt aus der Reihe der Mitglieder den Vorstand und den Beirat. Gewählt sind die Personen, die die meisten Stimmen auf sich vereinigen. Die Wahl findet geheim mit Stimmzetteln statt.
2. Die Mitgliederversammlung kann Mitglieder des Vorstands oder des Beirats abwählen. Hierzu benötigt sie in Abweichung von 1. die Mehrheit der Stimmen aller Vereinsmitglieder.
3. Die Mitgliederversammlung entscheidet über Anträge von Mitgliedern, die durch Vorstandsbeschluß ausgeschlossen werden sollen.
4. Die Mitgliederversammlung nimmt den jährlich vorzulegenden Geschäftsbericht des Vorstandes und den Prüfungsbericht des Rechnungsprüfers entgegen und erteilt dem Vorstand Entlastung aufgrund von Tätigkeits- und Kassenberichten.
5. Die Mitgliederversammlung entscheidet über den vom Vorstand jährlich vorzulegenden Haushaltsplan des Vereines.
6. Die Mitgliederversammlung hat Satzungsänderungen und Vereinsauflösungen zu beschließen.
7. Ihr sind insbesondere die Jahresrechnung und der Jahresbericht zur Beschlußfassung über die Genehmigung und die Entlastung des Vorstandes schriftlich vorzulegen. Sie bestellt eine/n Rechnungsprüfer/in, die/der weder dem Vorstand noch einem vom Vorstand berufenen Gremium angehören und auch nicht Angestellte des Vereins sein darf, um die Buchführung einschließlich Jahresabschluß zu prüfen und über das Ergebnis vor der Mitgliederversammlung zu berichten. Der/die Rechnungsprüfer/in hat Zugang zu allen Buchungs- und Rechnungsunterlagen des Vereines.
1. Der Vorstand besteht aus der/dem 1. Vorsitzenden, der/dem 2. Vorsitzenden und der/dem Schatzmeister/in.
2. Der Vorstand wird von der Mitgliederversammlung in geheimer Wahl auf zwei Jahre gewählt. Er bleibt auch nach Ablauf seiner Amtszeit bis zur Neuwahl im Amt. Bei Ausscheiden einzelner Vorstandsmitglieder ergänzt sich der Vorstand für die Zeit bis zur nächsten Mitgliederversammlung durch Zuwahl. Der Vorstand tritt mindstens einmal im Jahr zusammen. Er ist bei Anwesenheit aller Mitglieder beschlußfähig.
Beschlüsse des Vorstand können bei Eilbedürftigkeit auch schriftlich oder fernmündlich gefaßt werden, wenn alle Vorstandsmitglieder ihre Zustimmung zu diesem Verfahren schriftlich oder fernmündlich erklären. Schriftlich oder fernmündlich gefaßte Vorstandsbeschlüsse sind schriftlich niederzulegen und vom Vorstand zu unterzeichnen.
3. Der Vorstand führt die Geschäfte der Gesellschaft. Ihm obliegt die Planung, Organisation und Koordination von Vorhaben der Gesellschaft sowie die Durchführung der Beschlüsse der Mitgliederversammlung. Er entwirft den Haushaltsplan.
4. Vorstand im Sinne des § 26 Abs. 2 BGB ist der Vorsitzende.
5. Satzungsänderungen, die von Aufsichts-, Gerichts- oder Finanzbehörden aus formalen Gründen verlangt werden, kann der Vorstand von sich aus vornehmen. Diese Satzungsänderungen müssen der nächsten Mitgliederversammlung mitgeteilt werden.
6. Die Beschlüsse des Vorstands werden schriftlich protokolliert und stehen den Mitgliedern zur Einsicht zur Verfügung.
1. Die Mitgliederversammlung wählt unter angemessener Berücksichtigung der in der Gesellschaft vertretenen Fachrichtungen und der geographischen Verteilung der Mitglieder einen Beirat von bis zu zehn Mitgliedern, die für jeweils drei Jahre im Amt sind.
2. Der Beirat steht dem Vorstand beratend zur Seite. Der Vorstand hat ihn laufend über die Arbeiten der Gesellschaft zu unterrichten.


There is established the United States Commission on Civil Rights (hereinafter in this chapter referred to as the "Commission").
(1) 4 members of the Commission shall be appointed by the President.
(2) 2 members of the Commission shall be appointed by the President pro tempore of the Senate, upon the recommendations of the majority leader and the minority leader, and of the members appointed not more than one shall be appointed from the same political party.
(3) 2 members of the Commission shall be appointed by the Speaker of the House of Representatives upon the recommendations of the majority leader and the minority leader, and of the members appointed not more than one shall be appointed from the same political party.
The term of office of each member of the Commission shall be 6 years. The term of each member of the Commission in the initial membership of the Commission shall expire on the date such term would have expired as of September 30, 1994.
(1) Except as provided in paragraphs (2) and (3), the individuals serving as Chairperson and Vice Chairperson of the United States Commission on Civil Rights on September 30, 1994 shall initially fill those roles on the Commission.
(2) Thereafter the President may, with the concurrence of a majority of the Commission's members, designate a Chairperson or Vice Chairperson, as the case may be, from among the Commission's members.
(3) The President shall, with the concurrence of a majority of the Commission's members, fill a vacancy by designating a Chairperson or Vice Chairperson, as the case may be, from among the Commission's members.
(4) The Vice Chairperson shall act in place of the Chairperson in the absence of the Chairperson.
The President may remove a member of the Commission only for neglect of duty or malfeasance in office.
5 members of the Commission constitute a quorum of the Commission.
A prior section 1975, Pub. L. 85–315, pt. I, §101, Sept. 9, 1957, 71 Stat. 634, related to establishment, membership, etc., of Commission on Civil Rights. See Codification note set out preceding this section.
1994—Pub. L. 103–419 amended section generally, substituting provisions relating to establishment of United States Commission on Civil Rights for provisions relating to Commission on Civil Rights.
1991—Subsec. (c). Pub. L. 102–167 substituted "Chairperson" for "Chairman" wherever appearing.
Pub. L. 103–419, §1, Oct. 25, 1994, 108 Stat. 4338, provided that: "This Act [amending this section and sections 1975a to 1975d of this title, omitting former sections 1975e and 1975f of this title, and amending provisions set out as a note below] may be cited as the 'Civil Rights Commission Amendments Act of 1994'."
Pub. L. 102–400, §1, Oct. 7, 1992, 106 Stat. 1955, provided that: "This Act [amending section 1975e of this title] may be cited as the 'United States Commission on Civil Rights Authorization Act of 1992'."
Pub. L. 102–167, §1, Nov. 26, 1991, 105 Stat. 1101, provided that: "This Act [amending this section and sections 1975a and 1975c to 1975f of this title] may be cited as the 'United States Commission on Civil Rights Reauthorization Act of 1991'."
Pub. L. 101–180, §1, Nov. 28, 1989, 103 Stat. 1325, provided that: "This Act [amending sections 1975e and 1975f of this title] may be cited as the 'Civil Rights Commission Reauthorization Act of 1989'."
Pub. L. 98–183, §1, Nov. 30, 1983, 97 Stat. 1301, as amended by Pub. L. 103–419, §2, Oct. 25, 1994, 108 Stat. 4338, provided that: "This Act [enacting this chapter] may be cited as the 'Civil Rights Commission Act of 1983'."
Short Titles 'Civil Rights Commission Amendments Act of 1994'."
'United States Commission on Civil Rights Authorization Act of 1992'."
'United States Commission on Civil Rights Reauthorization Act of 1991'."
'Civil Rights Commission Reauthorization Act of 1989'."
'Civil Rights Commission Act of 1983'."


text:
This e-book discusses legality, one of many 4 major ideas of legal legislations, and is split into six elements, in line with the medical figuring out of this key suggestion. bankruptcy 1 explores the relation among legality and the overall thought of legal legislation within the context of the constitution and improvement of legality in human society. This bankruptcy additionally outlines the 4 secondary rules of legality and describes them often phrases. Chapters 2-5 speak about intimately all of the 4 secondary ideas (Legitimate resources of the legal Norm; Applicability of the felony Norm in Time; Applicability of the legal Norm in position; and Interpretation of the legal Norm). ultimately, bankruptcy 6 rounds out the dialogue through addressing the matter of the clash of laws.
Nearly 1000 years in the past Gypsies, or Roma, left their local India. this present day Gypsies are available in nations in the course of the international, their particular tradition nonetheless intact regardless of the serious persecution they've got continued. This authoritative assortment brings jointly best Gypsy and non-Gypsy students to ascertain the Romani criminal process, an independent physique of legislations in line with an oral culture and latest along dominant nationwide criminal networks.
Regardless of the growing to be curiosity in protection among governments, agencies and most people, the availability of a lot protection is substandard. This booklet explores the issues dealing with defense, and units out innovative proposals to reinforce the effectiveness of protection in society, at nationwide and organizational degrees.
The stunning occasions of eleven September 2001 within the usa drew all over the world recognition to the terrorist phenomenon. This paintings makes a speciality of terrorism and the fight opposed to it in Europe - on contemporary studies, possibility perceptions and the guidelines of numerous ecu international locations, together with the results produced via the eleven September assaults.
P. , 2005, 2007). , in Britain Homicide Act, 1957, 5 & 6 Eliz. 11; in Germany section 211 of the German Penal Code; and in France article 221-1 of the French Penal Code. 1 The Structure of the Criminal Norm and Its Identification 19 controls individual behavior for the purpose of the protection of property. 9 This type of classification applies mostly to procedures in the criminal process and to evidentiary law. 10 These procedures are unique to sexual offenses, and are not applicable in property offenses.
State, 6 Cold. 545 (1869); Cutter v. L. 125 (1873); Squire v. State, 46 Ind. 459 (1874). 86 State v. Goodenow, 65 Me. 30 (1876); State v. W. 970 (1879). 87 Dixon v. , (1814) 3 M. & S. 11, 105 Eng. Rep. 516; Vantandillo v. , (1815) 4 M. & S. 73, 105 Eng. Rep. 762; R. v. Burnett, (1815) 4 M. & S. 272, 105 Eng. Rep. 835. g. Sweet v. C. R. R. P. 188, 53 Cr. App. Rep. G. D. 123; Jeremy Horder, Strict Liability, Statutory Construction and the Spirit of Liberty, 118 LAW Q. REV. 458 (2002); John R. Spencer and Antje Pedain, Approaches to Strict and Constructive Liability in Continental Criminal Law, in APPRAISING STRICT LIABILITY 237 (A.
W. 970 (1879). 87 Dixon v. , (1814) 3 M. & S. 11, 105 Eng. Rep. 516; Vantandillo v. , (1815) 4 M. & S. 73, 105 Eng. Rep. 762; R. v. Burnett, (1815) 4 M. & S. 272, 105 Eng. Rep. 835. g. Sweet v. C. R. R. P. 188, 53 Cr. App. Rep. G. D. 123; Jeremy Horder, Strict Liability, Statutory Construction and the Spirit of Liberty, 118 LAW Q. REV. 458 (2002); John R. Spencer and Antje Pedain, Approaches to Strict and Constructive Liability in Continental Criminal Law, in APPRAISING STRICT LIABILITY 237 (A.

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text:
Dr. Pereanu earned his B.S. in Biology from the University of Arizona and his Ph.D. in Developmental Neuroscience from UCLA. His thesis work focused on describing the anatomy of the larval and pupal brains in the model organism Drosophila melanogaster. He has since continued to extend his work into the adult fly. He has published eight peer-reviewed research articles, one review and one book chapter.
I am deeply interested in the application of bioinformatic approaches to complex three-dimensional datasets, such as those routinely generated in brain anatomy studies. I joined MindSpec in 2011 to investigate using this approach to better understand the etiology of autism spectrum disorders.
Pereanu, W., Kumar, A., Jenett, A., Reichert, H., and Hartenstein, V. (2010) Development-based compartmentalization of the Drosophila central brain. J Comp Neurol 518(15), 2996-3023.
Cardona, A., Saalfeld, S., Arganda, I., Pereanu, W., Schindelin, J., and Hartenstein, V. (2010) Identifying neuronal lineages of Drosophila by sequence analysis of axon tracts. J Neurosci 30(22), 7538-7553.
Larsen, C., Shy, D., Spindler, S.R., Fung, S., Pereanu, W., Younossi-Hartenstein, A., and Hartenstein, V. (2009). Patterns of growth, axonal extension and axonal arborization of neuronal lineages in the developing Drosophila brain. Dev Biol 335(2), 289-304.
Hartenstein, V., Cardona, A., Pereanu, W., and Younossi-Hartenstein, A. (2008). Modeling the developing Drosophila brain: rationale, technique and application. BioScience 58(9), 823-836.
Pereanu, W., Spindler, S., Im, E., Buu, N., and Hartenstein, V. (2007). The emergence of patterned movement during late embryogenesis of Drosophila. Dev Neurobiol 67(12), 1669-1685.
Pereanu, W., Spindler, S., Cruz, L., and Hartenstein, V. (2007). Tracheal development in the Drosophila brain is constrained by glial cells. Dev Bio 302(1), 169-180.
Pereanu, W., and Hartenstein, V. (2006). Neural Lineages of the Drosophila Brain: A 3D Digital Atlas of the Pattern of Lineage Location and Projections at the Late Larval Stage. Jour Neurosci 26(20), 5534-5553.
Pereanu, W., Shy, D., and Hartenstein, V. (2005). Morphogenesis and Proliferation of the Larval Brain Glia in Drosophila. Dev Bio 283(1), 191-203.
Pereanu, W., and Hartenstein, V. (2004). Digital three-dimensional models of Drosophila development. Curr. Opin. Genet. Dev. 14(4), 382-391.
Hartenstein, V., Spindler, S., Pereanu, W., and Fung, S. (2008). The development of the Drosophila brain. In Brain Development in Drosophila melanogaster. G.M. Technau, ed. (New York: Springer New York), pp. 1-31.

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The Tobacco Control Act requires the FDA to establish a rule requiring tobacco manufacturers to place warning labels that cover 50 percent of the surface of the front and rear of cigarette packages, as well as warning labels covering 20 percent of the area of cigarette advertisements.1 The Act requires that the warnings include color graphics, to be determined by the FDA, “depicting the negative health consequences of smoking.”2 The FDA released the final rule governing the new graphic warnings in June 2011 and scheduled the regulation to take effect in September 2012.
On August 16, 2011, five tobacco manufacturers (R.J. Reynolds, Lorillard, Commonwealth Brands, Liggett Group, and Santa Fe Natural) filed suit against the FDA in the U.S. District Court for the District of Columbia, challenging the FDA’s graphic warning rule. The companies argued that the rule violated their First Amendment rights and that the warning requirements should have been put on hold until the case was fully resolved.
The district court granted the tobacco companies’ request to bar the rule from taking effect pending resolution of the case.3 Additionally, on February 29, 2012, the district court held that the graphic warning rule violated the tobacco companies’ First Amendment rights.4 The FDA appealed this decision to the U.S. Court of Appeals for the D.C. Circuit.
It is important to note that the Court of Appeals decision was not unanimous. The dissenting judge would have upheld the rule under a different standard, the Zauderertest, which applies to compelled commercial speech, rather than using the Central Hudson standard, which applies to restrictions on commercial speech. The dissenting judge also disagreed with the majority’s articulation of the government interest in the rule, finding that the real primary purpose of the graphic warning rule was to effectively communicate the negative health consequences of smoking to consumers.
On October 9, 2012, the FDA filed a petition for a rehearing en banc (a rehearing before all of the judges of the U.S. Court of Appeals for the D.C. Circuit, instead of a three-judge panel), which was denied on December 5, 2012.
Click to return to the Tobacco Control Act Cases page.
1 Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, § 201(a), 123 Stat. 1776, 1842–44 (amending 15 U.S.C. § 1333(a)-(b) (2006)).
2 Id. § 201(a), 123 Stat. at 1845 (amending 15 U.S.C. § 1333(d) (2006)).
3 R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Admin., 823 F. Supp. 2d 36, 53 (D.D.C. 2011).
4 R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Admin., 845 F. Supp. 2d 266, 277 (D.D.C. 2012).
5 R.J. Reynolds 696 F.3d 205. Dissenting Judge Rogers concluded that the graphic warnings, except the requirement that they include “1-800-QUIT-NOW,” were constitutional. Id. at 1223.
7 For more information about the Central Hudson standard, refer to Tobacco Control Legal Consortium, Regulating Tobacco Marketing: "Commercial Speech" Guidelines for State and Local Governments 5–6 (2010), available at http://publichealthlawcenter.org/sites/default/files/resources/tclc-guidelines-speech-2010.pdf.
8 R.J. Reynolds, 696 F.3d at 1218 (quoting Required Warnings for Cigarette Packages and Advertisements, 76 Fed. Reg. 36,628 (June 22, 2011)).
13 For a more in-depth examination of the distinctions between Discount Tobacco and R.J. Reynolds and the FDA’s options for implementing a graphic warning rule, see Tobacco Control Legal Consortium, Cigarette Graphic Warnings and the Divided Federal Courts (2013) available here.
14 Jidong Huang, Frank Chaloupka & Geoffrey T. Fong, Cigarette Graphic Warning Labels and Smoking Prevalence in Canada: A Critical Examination and Reformulation of the FDA Regulatory Impact Analysis, 23 suppl. 1 Tobacco Control i7 (2014). For a summary of the study and its implications for the FDA’s implementation of graphic warnings, see Campaign for Tobacco Free Kids, New Study: FDA Vastly Underestimated How Much Graphic Cigarette Warnings Would Reduce Smoking in U.S: Statement of Matthew L. Myers President, Campaign for Tobacco-Free Kids (Nov. 25, 2013), http://www.tobaccofreekids.org/press_releases/post/2013_11_25_warnings.