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Law Web: Whether accused can make conversation with his lawyer during interrogation by police?
Whether accused can make conversation with his lawyer during interrogation by police?
(10). The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
28. Strictly speaking the aforesaid direction does not apply to the case of the Respondent, because he being on bail cannot be described as an arrestee. But, it is stated on behalf of the Respondent that he suffers from heart disease and on going to the DRI office, in pursuance to the summons issued by the authorities, he had suffered a heart attack. It is also alleged that his brother was subjected to torture and the Respondent himself was threatened with third degree methods. The medical condition of the Respondent was accepted by the Metropolitan Sessions Judge and that forms one of the grounds for grant of anticipatory bail to him. Taking a cue, therefore, from the direction made in DK Basu and having regard to the special facts and circumstances of the case, we deem it appropriate to direct that the interrogation of the Respondent may be held within the sight of his advocate or any other person duly authorized by him. The advocate or the person authorized by the Respondent may watch the proceedings from a distance or from beyond a glass partition but he will not be within the hearing distance and it will not be open to the Respondent to have consultations with him in course of the interrogation.
Aftab Alam and R.M. Lodha, JJ.
2. This appeal is directed against the judgment and order of the Andhra Pradesh High Court dated March 22, 2007 in Crl. R.C. No. 300 of 2007 by which the High Court dismissed the criminal revision filed by the Appellant and affirmed the order of the Metropolitan Sessions Judge dated December 15, 2006, directing that any interrogation of the Respondent may be held only in the presence of his advocate.
3. The facts and circumstances in which this appeal arises need to be noticed first. On July 20, 2006, the officers of the Directorate of Revenue Intelligence (for short "DRI") Hyderabad, raided the premises of M/s Hy-Gro Chemicals Pharmatek Private Ltd. and found a shortage of 250kgs of Dextropropoxyphene Hydrochloride (DPP HCL). DPP HCL is a manufactured narcotic drug as specified in Government of India's notification S.O. 826(E), dated November 14, 1985, at Serial No. 87.
4. C.K. Bishnoi (accused No. 1) and P.V. Satyanarayana Raju (accused No. 2), the Managing Director and the Production Manager, respectively, of M/s Hy-Gro Chemicals Pharmatek Private Ltd., admitted that the drug was clandestinely cleared to M/s J. K. Pharma Agencies, New Delhi, of which the Respondent, Jugal Kishore Samra and his brother, Ramesh Kumar Samra (accused No. 3) happen to be the partners. On the next day, i.e., July 21, 2006, a search was carried out at the Cargo Complex of the Indira Gandhi International Airport, New Delhi, and five drums containing DPP HCL were discovered. On examination of the cargo it was found that the contraband was manufactured by M/s Hy-Gro Chemicals Pharmatek Pvt. Ltd. and was sent to M/s J.K. Pharma Agencies by wrongly declaring the consignment as 5-Amino Salicylic Acid. The Directorate of Revenue Intelligence registered a case against C.K. Bishnoi, P.V. Satyanarayana Raju and Ramesh Kumar Samra for the offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act").
5. While the statements of accused No. 1 and accused No. 2 had already been recorded under Section 67 of the NDPS Act, the DRI officials summoned the Respondent and his brother (accused No. 3). According to the Respondent, on November 5, 2006, when he, accompanied by his brother and another person arrived at the DRI office in, Hyderabad, at 10:30pm, they were tortured by the DRI Officials. Unable to withstand the torture, the Respondent suffered a heart attack and was moved to a hospital. The Respondent was discharged on November 7, 2006 and advised complete bed rest for a month. But he went directly to the DRI Office to enquire about the whereabouts of his brother. He was kept waiting for 2 days and was also given threats of third degree methods. On November 9, 2006, en route to the DRI Office, the Respondent developed chest pain and was again hospitalized till November 11, 2006.
6. In this background, the Respondent filed an application for anticipatory bail under Section 438 of the Code of Criminal Procedure which was allowed by the Metropolitan Sessions Judge by order dated December 1, 2006, on the ground that the Respondent was not shown as an accused in the case and, therefore, the bar under Section 37 of the NDPS Act did not apply to him and further, the medical record filed by the Respondent showed that he had been suffering from heart disease and had already undergone heart surgery on two occasions.
7. After the grant of anticipatory bail, the Respondent filed another application under Section 438(2) of the Cr.P.C. for modification of the order of anticipatory bail to the extent that the interrogation and examination of the Respondent be conducted in the presence of his advocate and a cardiologist. The Metropolitan Sessions Judge, by order dated December 15, 2006, partly allowed the application of the Respondent after perusing the medical record and holding that the presence of an advocate at the time of interrogation of the Respondent by the DRI officials is necessary to ensure free and fair interrogation.
8. Aggrieved by the order of the Metropolitan Sessions Judge dated December 1, 2006, the Appellant moved the Andhra Pradesh High Court in Crl. M.P. No. 5772 of 2006 praying for cancellation of the anticipatory bail granted to the Respondent. The High Court found no merit in the petition and dismissed it by order dated January 31, 2007.
9. Here it may be noted that on the same day, i.e. January 31, 2007, another bench of the Andhra Pradesh High Court allowed another petition (Crl. M.P. No. 5880 of 2006) filed by the Appellant and cancelled the bail granted to the Respondent's brother, Ramesh Samra by the Metropolitan Sessions Judge on December 19, 2006. Challenging the order of the High Court, however, Ramesh Kumar Samra, came to this Court in SLP (Crl.) No. 1077/07. The special leave petition was allowed and by order dated December 10, 2009 this Court set aside the order of the High Court. The bail of Ramesh Kumar Samra too was, thus, restored.
9. In the present case, on account of the apprehension of the Respondent, the lower court permitted the Advocate to be present during the course of interrogation. But the Advocate was directed not to interfere during the course of interrogation. The purpose of the Respondent requesting the presence of the Advocate is only on account of the apprehension that the Investigating Officers are likely to apply third degree methods like physical assault, etc., therefore, the learned Sessions Judge passed the impugned order.
10. It is an undisputed fact that application of third degree method to the accused is prohibited and interrogation of the accused is a right provided to the Investigating Officer to elicit certain information regarding the commission of the offence. Though the Advocate was permitted to be present during the course of interrogation, he was prevented from interference during the course of interrogation. When the police do not resort to apply third degree methods, there cannot be any problem for them to interrogate the Respondent to elicit necessary information relating to the above crime in the presence of his Advocate.
11. After considering the above aspects, I am of the view that the order passed by the learned Sessions Judge is in no way affecting the right of the Investigating Officer to interrogate the Respondent in the presence of his Advocate, therefore, I do not find any merit in this Revision Case.
11. Now, the matter has been brought to this Court by the Appellant in appeal by grant of leave. At the special leave petition stage, the Court had made the direction that interrogation of the Respondent can be carried out in accordance with the direction of the High Court. We are, however, informed that the Respondent has not been interrogated so far and the Appellant is awaiting the order of the Court on his appeal.
12. Mr. K. T. S. Tulsi, Senior Advocate, appearing for the Respondent stoutly defended the order passed by the Sessions judge and affirmed by the High Court. He invoked the rights guaranteed under Articles 20(3), 22(1) and 22(2) of the Constitution of India to justify the Respondent's plea that his interrogation can take place only in presence of his lawyer. In support of the submission he placed great reliance on a decision by a bench of three judges of this Court in Nandini Satpathy v. P.L. Dani MANU/SC/0139/1978 : (1978) 2 SCC 424.
13. Nandini Satpathy, a former Chief Minister of the State of Orissa was named as one of the accused in a case registered under Sections 5(2) read with Section 5(1)(d) & (e) of the Prevention of Corruption Act, 1947, and under Sections 161, 165 and 120B and 109 of the Penal Code on the allegation of amassing assets disproportionate to her known and licit sources of income. For interrogation in connection with that case she was sent a long questionnaire along with summons to appear before the investigating officer on the fixed date and time and to answer those questions. She did not appear before the investigating officer as required by the summons where-upon the investigating officer filed a complaint against her under Section 179 of the Penal Code. The Sub-Divisional Judicial Magistrate took cognizance of the offence and issued process against her. Questioning the order of the magistrate as violative of her right to silence she challenged it first before the High Court of Orissa and on being unsuccessful there brought the matter to this Court.
14. The decision of the Court in the case of Nandini Satpathi was delivered by Justice Krishna Iyer and it is a fine example of his Lordship's inimitable polemical style of writing.The boldness of Miranda v. Arizona, (1966) 384 US 436 as an instance of judicial innovation and positivism was still quite fresh and taking Miranda as a source of inspiration, Iyer J., pondered over issues of Judicial philosophy and speculated about the frontiers to which he would have liked to expand the constitutional guarantee under Article 20(3), maintaining, of course, the fine balance between the rights of the individual and the social obligation "to discover guilt, wherever hidden, and to fulfill the final tryst of the justice system with the society.
1. Is a person likely to be accused of crimes i.e. a suspect accused, entitled to the sanctuary of silence as one 'accused of any offence'? Is it sufficient that he is a potential-of course, not distant-candidate for accusation by the police?
3. Does the constitutional shield of silence swing into action only in court or can it barricade the 'accused' against incriminating interrogation at the stages of police investigation?
7. Does 'any person' in Section 161 Code of Criminal Procedure include an accused person or only a witness?
57. We hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation-not, as contended, commencing in court only. In our judgment, the provisions of Article 20(3) and Section 161(1) substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read 'compelled testimony' as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like-not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt, it becomes 'compelled testimony', violative of Article 20(3).
17. It may be mentioned here that in holding, "the prohibitive sweep of Article 20(3) goes back to the stage of police interrogation-not, as contended, commencing in court only" the decision in Nandini Satpathy apparently went against two earlier constitution bench decisions of this Court in Ramesh Chandra Mehta v. State of West BengalMANU/SC/0282/1968 : 1969 (2) SCR 461 and Illias v. Collector of Customs, MadrasMANU/SC/0297/1968 : 1969 (2) SCR 613.
61. It may not be sufficient merely to state the rules of jurisprudence in a branch like this. The man who has to work it is the average police head constable in the Indian countryside. The man who has to defend himself with the constitutional shield is the little individual, by and large. The place where these principles have to have play is the unpleasant police station, unused to constitutional nuances and habituated to other strategies. Naturally, practical points which lend themselves to adoption without much sophistication must be indicated if this judgment is to have full social relevance. In this perspective we address ourselves to the further task of concretising guidelines.
No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
The right to consult an advocate of his choice shall not be denied to any person who is arrested. This does not mean that persons who are not under arrest or custody can be denied that right. The spirit and sense of Article 22(1) is that it is fundamental to the rule of law that the services of a lawyer shall be available for consultation to any accused person under circumstances of near custodial interrogation. Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a legal practitioner of his choice.
63. Lawyer's presence is a constitutional claim in some circumstances in our country also, and, in the context of Article 20(3), is an assurance of awareness and observance of the right to silence. The Miranda decision has insisted that if an accused person asks for lawyer's assistance, at the stage of interrogation, it shall be granted before commencing or continuing with the questioning. We think that Article 20(3) and Article 22(1) may, in a way, be telescoped by making it prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is examined. Overreaching Article 20(3) and Section 161(2) will be obviated by this requirement. We do not lay down that the police must secure the services of a lawyer. That will lead to 'police-station-lawyer' system, an abuse which breeds other vices. But all that we mean is that if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied, without being exposed to the serious reproof that involuntary self-crimination secured in secrecy and by coercing the will, was the project.
64. Not that a lawyer's presence is a panacea for all problems of involuntary self-crimination, for he cannot supply answers or whisper hints or otherwise interfere with the course of questioning except to intercept where intimidatory tactics are tried, caution his client where incrimination is attempted and insist on questions and answers being noted where objections are not otherwise fully appreciated. He cannot harangue the police but may help his client and complain on his behalf, although his very presence will ordinarily remove the implicit menace of a police station.
65. We realize that the presence of a lawyer is asking for the moon in many cases until a public defender system becomes ubiquitous. The police need not wait for more than for a reasonable while for an advocate's arrival. But they must invariably warn ?and record that fact- about the right to silence against self-incrimination; and where the accused is literate take his written acknowledgment.
19. It is on these passages in Nandini Satpathy that Mr. Tulsi heavily relies and which practically forms the sheet-anchor of his case.
4. Both Mr. Salve and Mr. Lalit strongly relied on the observations inNandini Satpathy v. P.L. Dani MANU/SC/0139/1978 : (1978) 2 SCC 424. We are afraid, in view of two judgments of the Constitution Bench of this Court in Ramesh Chandra Mehta v. State of W.B. MANU/SC/0282/1968 : (1969) 2 SCR 461, and Illias v. Collector of Customs, MadrasMANU/SC/0297/1968 : (1969) 2 SCR 613, the stand of the Appellant cannot be accepted. The learned Counsel urged that since Nandini Satpathy case was decided later, the observations therein must be given effect to by this Court now. There is no force in this argument.
The expression 'any person' includes a person who is suspected or believed to be concerned in the smuggling of goods. But a person arrested by a Customs Officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an offence within the meaning of Article 20(3) of the Constitution. The steps taken by the Customs Officer are for the purpose of holding an enquiry under the Sea Customs Act and for adjudging confiscation of goods dutiable or prohibited and imposing penalties. The Customs Officer does not at that stage accuse the person suspected or infringing the provisions of the Sea Customs Act with the commission of any offence. His primary duty is to prevent smuggling and to recover duties of Customs when collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Sea Customs Act, he is not accusing the person of any offence punishable at a trial before a Magistrate.
The above conclusion was reached after consideration of several relevant decisions and deep deliberation on the issue, and cannot be ignored on the strength of certain observations in the judgment by three learned Judges in Nandini Satpathy case which is, as will be pointed out hereinafter, clearly distinguishable.
9. Mr. Salve has, next, contended that the Appellant is within his right to insist on the presence of his lawyer on the basis of Article 21 of the Constitution. He has urged that by way of ensuring protection to his life and liberty he is entitled to demand that he shall not be asked any question in the absence of his lawyer. The argument proceeds to suggest that although strictly the questioning by the Revenue authorities does not amount to custodial interrogation, it must be treated as near custodial interrogation, and if the same is continued for a long period it may amount to mental third degree. It was submitted by both Mr. Salve and Mr. Lalit that the present issue should be resolved only by applying the 'just, fair and reasonable test', and Mr. Lalit further added that the point has to be decided in the light of the facts and circumstances obtaining in a particular case and a general rule should not be laid down one way or the other. Mr. Salve urged that when a person is called by the Customs authorities to their office or to any place away from his house, and is subjected to intensive interrogation without the presence of somebody who can aid and advise him, he is bound to get upset, which by itself amounts to loss of liberty. Reference was made by the learned Counsel to the minority view In Re: Groban 352 US 330 : 1 L Ed 2d 376, declaring that it violates the protection guaranteed by the Constitution for the State to compel a person to appear alone before any law enforcement officer and give testimony in secret against his will.
10. ?We do not share the apprehension as expressed above in the minority judgment in connection with enquiry and investigation under the Customs Act and other similar statutes of our country. There is no question of whisking away the persons concerned in these cases before us for secret interrogation, and there is no reason for us to impute the motive of preparing the groundwork of false cases for securing conviction of innocent persons, to the officers of the state duly engaged in performing their duty of prevention and detection of economic crimes and recovering misappropriated money justly belonging to the public. Reference was also made to the observation in the judgment in Carlos Garza De Luna, Appt. v. United States American Law Reports 3d 969, setting out the historical background of the right of silence of an accused in a criminal case. Mr. Salve has relied upon the opinion of Wisdom, Circuit Judge, that the history of development of the right of silence is a history of accretions, not of an avulsion and the line of growth in the course of time discloses the expanding conception of the right than its restricted application. The Judge was fair enough to discuss the other point of view espoused by the great jurists of both sides of Atlantic before expressing his opinion. In any event we are not concerned with the right of an accused in a criminal case and the decision is, therefore, not relevant at all. The facts as emerging from the judgment indicate that narcotics were thrown from a car carrying the two persons accused in the case. One of the accused persons testified at the trial and his counsel in argument to the jury made adverse comments on the failure of the other accused to go to the witness box. The first accused was acquitted and the second accused was convicted. The question of the right of silence of the accused came up for consideration in this set up. In the cases before us the persons concerned are not accused and we do not find any justification for "expanding" the right reserved by the Constitution of India in favour of accused persons to be enjoyed by others.
24. In the end, the Court allowed the appeal filed by the Revenue authorities in the case in which the High Court had directed for interrogation to take place in presence of the advocate and dismissed all the other appeals in the batch on behalf of the individuals in whose cases the High Court had declined to give any such direction.
25. It is seen above that the Respondent applied for and got anticipatory bail on the premise that he was not an accused in the case. There was no change in his position or status since the grant of bail till he was summoned to appear before the DRI officers. On the facts of the case, therefore, it is futile to contend that the Respondent is entitled, as of right, to the presence of his lawyer at the time of his interrogation in connection with the case. Moreover, the Respondent's plea for the presence of his lawyer at the time of his interrogation clearly appears to be in teeth of the decision in Poolpandi. Nonetheless, Mr. Tulsi contended that the Respondent's right was recognized by this Court and preserved in Nandini Satpathy and the decision in Poolpandi has no application to the present case. According to Mr. Tulsi, the Respondent is summoned for interrogation in connection with a case registered under the NDPS Act, which Mr. Tulsi called a "regular criminal" case, while Poolpandi was a case under the Customs Act and so were the two cases before the constitution bench in Ramesh Chandra Mehta and in Illias that formed the basis of the decision in Poolpandi. In our view, the distinction sought to be drawn by Mr. Tulsi is illusory and non-existent. The decision in Poolpandi was in cases under the Customs Act, 1962 and the Foreign Exchange Regulation Act, 1973. Both these Acts have stringent provisions regarding search, seizure and arrest and some of the offences under each of these two Acts carry a punishment of imprisonment up to 7 years. We, therefore, fail to see, how a case registered under NDPS Act can be said to be a "regular criminal" case and the cases under the Customs Act and the Foreign Exchange Regulation Act, not as criminal cases.
26. In view of the clear and direct decision in Poolpandi, we find the order of the High Court, affirming the direction given by the Sessions Judge clearly unsustainable.
29. The order passed by the Metropolitan Sessions Judge and affirmed by the High Court is substituted by the aforesaid directions made by us.
30. Before closing the record of the case, we may state that arguments were advanced before us, when does a person called for interrogation in connection with a case ceases to be a mere provider of relevant information or a witness and becomes an accused entitled to the Constitutional protections. Arguments were also addressed on Article 20(3), 22(1) and 22(2) and Section 161 of the Code of Criminal Procedure But, in the facts of the case we see no reason to go into those questions and we are satisfied that the present case is fully covered by the three judge bench decision of this Court in Poolpandi.
31. In the result, the orders passed by the High Court and the Metropolitan Session Judge are set aside and the appeal is allowed to the extent indicated above.

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A unanimous Court last week (with Justice Kagan recused) issued a surprisingly brief, even curt, ruling on municipal liability for civil rights violations. The opinion in Los Angeles County v. Humphries came down less than two months after oral argument and is notable for its unusually straightforward and clear analysis. As the Roberts Court comes under increasing fire for what some describe as overly long, fractured, and confusing rulings, Humphries is a stand-out: a model of simplicity, clarity, and judicial minimalism.
The case involved Los Angeles County's enforcement of the California Child Abuse and Neglect Reporting Act. Under the Act and in response to allegations of abuse, a county officer listed two parents, the Humphries, on the state's Child Abuse Central Index. (The Index is available to various state and local agencies, which use it for background investigations for employment, child-care licensing, and adoption.) The parents were later exonerated and sought to have their names removed. But the Act did not provide for, and the county did not adopt, a procedure for removal. They thus remained on the Index.
The Humphries sued the state, the county, and various officers under 42 U.S.C. § 1983 for violation of their procedural due process rights. They sought declaratory relief, an injunction ordering their removal from the Index, and damages. (Claims against individual officers were dismissed.) The Ninth Circuit ruled in their favor, holding that the Humphries were entitled to declaratory relief and possibly damages (to be determined on remand). The court also ruled that the Humphries were prevailing parties and ordered the county to pay nearly sixty thousand dollars in attorney's fees.
The county appealed to the Supreme Court, arguing that the Humphries could not have prevailed, because they failed to show that their deprivation was the result of a county policy or custom. The county argued that it was merely following California law"”that it adopted no independent policy of its own"”and that the Humphries therefore failed to satisfy the requirement of Monell v. Department of Social Services (1978), in which the Court held that local governments can be liable directly under § 1983 only when their action is the result of official policy or custom. The Humphries countered that Monell applied only to retroactive relief (i.e., monetary damages) and not to prospective relief (i.e., declaratory and injunctive relief) of the type at issue here.
The Court unanimously ruled for the county on this very narrow question. In an opinion by Justice Breyer, it held that the plain language of § 1983 and of Monell meant that the Monell requirement applied both to retroactive relief and to prospective relief.
The eleven-page opinion reads like a first-year law school exercise in rule application"”it's that refreshingly simple. The Court simply quoted Monell"”which says in plain language that local governments can be liable for "monetary, declaratory, or injunctive relief" when their actions resulted from their official policy or custom"”and applied it to this case. The Court was not troubled that Monell itself involved only damages (and not prospective relief), explaining that "[a] holding . . . can extend through its logic beyond the specific facts of the particular case." And it dismissed the other arguments offered by the Humprhies in three short paragraphs. It is all enough to give the impression that the case is merely perfunctory"”that the Court is simply tying up some loose ends and answering this narrow question that Monell arguably left open.
And that may be so, especially considering what the Court did not say. For example, despite invitations from the parties (lukewarm, to be sure), the Court did not say anything about federalism. (The county packaged this in terms of federal court intervention into municipal governance; the Humphries emphasized federal primacy in protecting civil rights.) And the Court declined to revisit Monell's historical analysis of early civil rights legislation. Either issue"”federalism or history"”could easily have sidetracked the Court from the central and narrow question here and could have resulted in a much more expansive and significant ruling. The Court stayed on course, though, and the result is a simple, clear, and minimalist decision.
One final point. Lest we worry that this ruling cuts off the remedies available to the Humphries"”or diminishes civil rights plaintiffs' remedies more generally"”the Court made clear that the case addresses just one narrow issue and that Monell still allows the Humphries to prevail on prospective relief. Thus, the Court carefully carves out of the case the issue whether the county's lack of policy can itself be a custom under Monell. If so, the Humphries could still prevail, even on their prospective claims.
The very narrow holding in the case is just this: A county can be liable under § 1983 for retroactive or prospective relief only when its actions result from policy or custom. While the ruling is not particularly plaintiff-friendly, it probably doesn't do too much damage to civil rights enforcement against municipalities.


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IS RACE-CONSCIOUS AFFIRMATIVE ACTION CONSISTENT WITH THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION?
The Fourteenth Amendment of the United States Constitution does not allow race conscious affirmative action in higher education admissions. The Fourteenth Amendment’s Equal Protection Clause protects individuals against racial discrimination. The Equal Protection Clause specifically states that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The precedent for affirmative action put forth in Grutter v. Bollinger 539 U.S. 306 is that of the strict scrutiny standard that must be applied to all matters of racial discrimination. The University of Texas at Austin’s (“UT”) admissions policy does not fit the standard that must be met: narrowly tailored and a compelling state interest. UT’s justification for using affirmative action to diversify the student body is setup in the form of a quota system. UT’s definition of classroom diversity is: two African-American students; two Hispanic students; and two Asian-American students, originally proposed in UT’s “Proposal to Consider Race and Ethnicity in Admissions” (the “Proposal”). Diversity under this definition is unobtainable and fails to pass strict scrutiny because of the use of a quota system. Although diversity is a compelling state interest, UT’s admissions policy, as described in the Proposal, is a quota system and does not consider diversity to be of top importance, otherwise the university would put a “critical mass” system into place. UT’s current admissions system violates the Equal Protection Clause of the Fourteenth Amendment by determining an individual’s admission based on their race to satisfy UT’s racial quota.
I. UT’s policy does not comply with the strict scrutiny standard.
Before even the rise of the Civil Rights Movement in the 1960’s, minority groups have been striving to create a foundation of equality in America. Martin Luther King Jr. advocated, “I look to a day when people will not be judged by the color of their skin, but by the content of their character.” (I have a dream speech). UT’s current admissions system counteracts modern equality philosophy, and further, is a violation of the strict scrutiny standard. Currently, racially discriminatory policies by the government must satisfy strict scrutiny, which was first alluded to in United States v. Carolene Products Co., 304 U.S. 144. All cases must pass a two part assessment in order to be constitutional regarding race: narrowly tailored and a compelling state interest.
The current standard that universities must uphold when considering racial classification for admission is narrow tailoring, “meaning no broader than necessary to achieve its goal” (Cornell). UT has put into place a system of affirmative action that amounts to a de facto quota system which was ruled unconstitutional in Regents of University of California v. Bakke, 438 U.S. 265. UT currently defines classroom diversity as at least, “more than one African-American student, more than one Hispanic student, and more than one Asian-American student” in each classroom. Fisher v. University of Texas at Austin, 133 S. Ct. 2411. UT’s admissions policy thus violates the Bakke prohibition against a quota system, wherein diversity is only reachable when there are six minority students in each class. This six student quota was originally decided from UT’s Proposal which was conducted by only looking at race and no other factors. This un-holistic approach causes UT to disavow any admissions factors other than race when striving to diversify the student body.
The Fifth District Court and United States Court of Appeals have deemed UT’s affirmative action system narrowly tailored because it is a virtually holistic system and is periodically reviewed (App. 307a-08a, 313a-14a.). When data is observed, such as the 2008 Texas population sample, the representation of minority races is not proportionate to that of the quota set by UT to establish diversity. UT’s quota system is a clear violation of the strict scrutiny standard and does not pass the narrowly tailored requirement. UT fails to provide sufficient supporting evidence for using racial preference in admissions.
Affirmative action violates the Equal Protection Clause of the Fourteenth Amendment if it is not narrowly tailored.
The Equal Protection Clause states that no state shall, “…deny to any person the equal protection of the laws.” While the Fourteenth Amendment’s original intention upon ratification was the rights and liberties of African-Americans, the U.S. Supreme Court has interpreted this clause to apply to all racial discrimination.
Leading the wave of equal protection cases was Brown v. Board of Education of Topeka 347 U.S. 483, stating that separate but equal was inherently unequal. This case equalized the education system by integrating schools and guaranteeing the same standard of education for white and black students.
Twenty years later, the case of Bakke held that quota systems, even if used in the interest of diversity to carry out affirmative action, are unconstitutional because they were too mechanical, and applicants such as Bakke got into the medical school or were rejected solely on the basis of race. Universities were allowed to consider race when evaluating prospective students for admission, but the use of quotas was strictly forbidden.
In Gratz v. Bollinger 539 U.S. 244, the Supreme Court held that the University of Michigan’s preferential treatment for minorities in undergraduate admissions violated the Equal Protection Clause. The automatic awarding of one-fifth of the points needed to guarantee admission to every single “underrepresented minority” applicant solely because of race was not narrowly tailored and did not provide the individualized consideration for admission considered in Bakke.
In the case of Adarand Constructors Inc. v. Pena 515 U.S. 200, the Supreme Court ruled that racial classification, imposed by the federal government, must pass the strict scrutiny standard, requiring narrow tailoring and a compelling state interest. Under the federal contract, the prime contractor would receive additional compensation if it hired small businesses controlled by “socially and economically disadvantaged individuals.” Thus, there was an incentive to hire a business controlled by a person of minority status. Furthermore, this ruling held that race is not a sufficient condition for an assumption of disadvantage and the award of favored treatment. In addition, proof of past injury does not in itself establish the suffering of present or future injury.
In Parents Involved in Community Schools v. Seattle School District 551 U.S. 701, race was used as the second most important factor when determining a tie breaker. The Supreme Court recognized that the Seattle School District had a compelling state interest to achieve diversity and avoid racial isolation, but struck down the district’s assignment plan finding that it was not narrowly tailored. Furthermore, the Court held that the tiebreaker plan was actually targeted toward racial balancing instead of educational benefits from racial diversity.
The similarities in all of these cases are that they unequally apply the law to those of different races and ethnicities. The key word is equal. The very nature of affirmative action seems motivated by a desire to grant reparations for past crimes and wrongdoings by the United States government. Nevertheless, affirmative action, ironically, is inconsistent with the Fourteenth Amendment and violates the Equal Protection Clause.
Brown v. Board guaranteed that students of all races would have access to the same level of education, attempting to ensure that the Equal Protection Clause would be upheld. In Bakke, the Supreme Court struck down quotas because it didn’t allow for students to be evaluated individually. In Gratz, the automated point system based on race mirrored the quota system’s lack of individual consideration, and students were admitted, or not, solely based on their race. Similarly, UT’s classroom quota system lacks the same individual consideration of applicants. Moreover, in Parents v. Seattle, the lack of narrow tailoring in their tiebreaker plan, where race is a deciding factor in what school a child attends, mirrors that of UT’s affirmative action system. Adarand parallels UT’s affirmative action system. In both cases, minorities were awarded favorable treatment, whether it was in consideration for college admission or an offer for employment. Furthermore, under the Adarand ruling, race is not a sufficient condition for the award of favored treatment, i.e. affirmative action. Affirmative action, without narrow tailoring, systematically guarantees that those of a minority race are given favorable treatment, solely on the basis of race.
Under the standard of strict scrutiny, all racially discriminatory policies set by government or a college admissions office must pass narrowly tailored and compelling state interest.
The affirmative action system at UT does not comply with the strict scrutiny standard. Furthermore, affirmative action violates the Equal Protection Clause of the Fourteenth Amendment. UT has created a quota system in order to define diversity. This system is unconstitutional under Bakke because all quotas were deemed unconstitutional. Under strict scrutiny, UT is not narrowly tailoring its affirmative action system. In addition, having a system of affirmative action that is not narrowly tailored is not consistent with the Fourteenth Amendment and violates the Equal Protection Clause. Under equal protection, all U.S. citizens are guaranteed equal protection under the law. Consequently, UT’s system of affirmative action specifically favors those of a minority race, giving them additional privileges above the norm. This results in unequal treatment under the law. Remaining consistent with the Supreme Court’s decision in Adarand v. Pena, race is not a sufficient condition for the award of favorable treatment, and affirmative action amounts to favorable treatment.
In the case of Fisher v. Texas, the Supreme Court should rule that the UT’s current system of affirmative action is unconstitutional. UT’s use of a quota system is consistent with the precedent set in Bakke, which forbids the use of quotas to guarantee diversity. Furthermore, the Supreme Court should rule that a system of affirmative action that is not narrowly tailored violates the Equal Protection Clause because it grants minority students admission to college solely on the basis of race, without consideration on an individual level. The Supreme Court should rule in favor of the respondent, Abigail Fisher because UT’s system of affirmative action clearly violates the strict scrutiny standard and the Equal Protection Clause.

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


COMMONWEALTH vs. DALE K. MCMULLIN.
Confrontation clause. The defendant argues that the admission of certified copies of records from the Registry of Motor Vehicles and the District Court violated his right to confront the witnesses against him under the Sixth Amendment to the United States Constitution. The defendant acknowledges that the admissibility of such records is established by Commonwealth v. Maloney, 447 Mass. 577 , 592 (2006), but observes that Maloney rested its analysis of the confrontation clause issue on Commonwealth v. Verde, 444 Mass. 279 , 283-284 (2005), and that Verde has since been overturned by the United States Supreme Court. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). The argument is unavailing. In Melendez-Diaz, the Court explicitly acknowledged that a clerk's affidavit authenticating an official record is not testimonial for purposes of the confrontation clause, see id. at 2538-2539, and explained that "[b]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because -- having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial -- they are not testimonial." Id. at 2539-2540. Admission of court records and records of the Registry of Motor Vehicles in the present case did not violate the defendant's Sixth Amendment right of confrontation. General Laws c. 90, § 24(4), is unaffected by the Melendez-Diaz decision. See Commonwealth v. Martinez-Guzman, ante 167, 171 n.3 (2010).
Judicial Court observed that, absent a showing by the Commonwealth that the defendant was represented by or waived counsel, a defendant's prior convictions may not be used to impeach his credibility, see Commonwealth v. Cook, 371 Mass. 832 , 833 (1977), or to determine the length of his sentence. See Commonwealth v. Barrett, 3 Mass. App. Ct. 8 , 9-10 (1975). However, the court since has held that a defendant generally is presumed to have been represented by (or to have waived) counsel in prior proceedings that resulted in a conviction, and the Commonwealth need not come forward with proof on the point unless the defendant first makes a showing that the conviction was obtained without representation by or waiver of counsel. See Commonwealth v. Saunders, 435 Mass. 691 , 695-696 (2002). See also Commonwealth v. Lopez, 426 Mass. 657 , 662 (1998) (applying presumption of regularity to guilty plea).
Deborah Bates Riordan (Theodore F. Riordan with her) for the defendant.
[Note 1] A fourth contention advanced by the defendant on appeal may be rejected without extended discussion. There is no merit to the defendant's argument, presented in his brief pursuant to Commonwealth v. Moffett, 383 Mass. 201 , 216- 217 (1981), that amendments to G. L. c. 90, § 24(1)(a)(1), enlarging the "reach back" period for prior offenses, constitute a breach of contract, for the reason (among others) that the statutory amendments had no effect on the plea agreement the defendant entered in 1997; instead they affect only the collateral consequences of the defendant's prior convictions on the defendant's subsequent 2006 offense.
[Note 2] The defendant raised this argument for the first time in his reply brief. We invited the Commonwealth to submit a further reply to the defendant's new argument and then heard oral argument on the claim. It is unclear from the defendant's brief whether he contends that the evidence at trial was insufficient because the evidence of his prior convictions was inadmissible, or whether he contends that the prior records are incompetent to establish his convictions. To the extent that the defendant's argument goes to the sufficiency of the evidence, it is without merit because the defendant did not object at trial to admission of the records; they were accordingly in evidence for all purposes even if timely objection would have succeeded in excluding them. Cf. Commonwealth v. Silva, 431 Mass. 401 , 404 (2000). We nonetheless consider whether the claim gives rise to a substantial risk of a miscarriage of justice. Id. at 405. The defendant does not argue that his trial counsel was constitutionally ineffective. In any event, such a claim would not be persuasive as a substantial risk of a miscarriage of justice is not present here. See Commonwealth v. Curtis, 417 Mass. 619 , 624-625 & n.4 (1994).
[Note 3] As the judge had the court records and the Registry of Motor Vehicle records before her and those records adequately established the defendant's prior convictions, the defendant's claim that there was insufficient evidence to convict him fails.


The claimant was represented by Neil Johnson, Esq., 250 Hudson Street, Hartford, CT 06106 on 1660 CRB-6-93-3. The claimant appeared pro se on 1974-CRB-6-94-2.
Respondent Second Injury Fund was represented by Yinxia Long, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the February 26, 1993 Finding and Award and the February 16, 1994 Supplemental Finding and Award of the Commissioner acting for the Sixth District was heard June 24, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Nancy A. Brouillet and Michael S. Miles.
JESSE M. FRANKL, CHAIRMAN. The claimant has filed petitions for review from two separate findings and awards of the Sixth District Commissioner. The first concerns the commissioner’s refusal to grant certain portions of the claimant’s motion to correct the Finding and Award dated February 26, 1993. The second is a pro se appeal concerning the commissioner’s February 16, 1994 Supplemental Finding and Award of fees due the claimant’s attorney. We affirm both of the commissioner’s awards.
The claimant suffered a work-related back injury on December 3, 1989, which necessitated surgery in July of 1991. Dr. Ballon, the claimant’s treating physician through August 16, 1991, reported on September 11, 1991 that, in his opinion, the claimant would remain totally disabled until “approximately the beginning of October.” Dr. Horn, the claimant’s treating physician from August 17, 1991 until September 30, 1992, subsequently reported that the claimant would not be capable of light duty work until June 15, 1992. The commissioner determined that the claimant had reached maximum medical improvement on August 18, 1992 and had sustained a 17.5 percent permanent partial disability of his back. The commissioner also found, however, that the claimant had not been forthright with his doctors regarding the extent of his incapacity. He found, as per Dr. Ballon’s report, that the claimant had a work capacity at the beginning of October 1991. The claimant challenges the propriety of the latter finding.
“‘The commissioner has the power and duty, as the trier of facts, to determine the facts. Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). “The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Adzima v. UAC/Norden Division, [177 Conn. 107, 118, 411 A.2d 924 (1979)]. . . .’ Vanzant v. Hall, 219 Conn. 674, 677, 594 A.2d 967 (1991).” Romanski v. West Hartford, 34 Conn. App. 307, 316 (1994). It is the commissioner’s prerogative to deny a motion to correct the findings unless the corrections offered consist of admitted or undisputed material facts that would have an effect upon the ultimate conclusion of the commissioner. Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994).
The commissioner was entitled to credit the medical opinion of Dr. Ballon, who had been the claimant’s treating physician until several weeks before the date of the report cited in the findings. The commissioner was not required to include in his findings the contradictory opinion of Dr. Horn. Although the opinion of a treating physician is certainly important, the commissioner may choose to believe the diagnosis of a different physician based on his authority to determine the credibility of witnesses and evidence. This Board may not substitute its own factual inferences for those of the commissioner where, as in this case, there is sufficient evidence to support the commissioner’s conclusions. Fair v. People’s Savings Bank, 207 Conn. 535, 541 (1988). The fact that the claimant’s work capacity was projected into the near future does not mean that the commissioner could not rely on it in Dr. Ballon’s report. The Finding and Award dated February 26, 1993 is thus affirmed.
The pro se claimant appealed the commissioner’s award of attorney’s fees to the claimant’s attorney. The commissioner found that a fee agreement existed between the claimant and his attorney entitling counsel to twenty (20%) percent of all benefits received by the claimant as a result of counsel’s efforts. The commissioner further found that the claimant’s efforts resulted in the $41,600 award of specific indemnity benefits that this Board affirmed above. The commissioner thus ordered the Second Injury Fund to pay $400 per week directly to claimant’s counsel until he has received twenty (20%) percent of the $41,600 award ($8,320).
It is the responsibility of the appellant to provide this Board with an adequate record for review. See Practice Book § 4061. Here, the claimant has not placed a copy of the fee agreement in the record, nor has he provided any support for his allegation that the $400 weekly payment ordered by the commissioner was improper because it caused him financial hardship. In light of our decision affirming the underlying award, there is simply no evidence in the record that would cause this Board to overturn the commissioner’s award of attorney’s fees. We thus affirm the commissioner’s Supplemental Finding and Award of February 16, 1994.


The Examiner rejected Maatita’s application containing a single two-dimensional plan-view drawing to disclose a shoe bottom design which left the design open to multiple interpretations regarding the depth and contour of the claimed elements. The PTAB affirmed.
The Examiner hypothesized four different designs, each of which were patentably distinct and therefore could not be covered by a single claim. Thus, the Examiner concluded that Maatita’s single claim was indefinite and not enabled, as one would not know which of the many possible distinct embodiments of the claim is applicant’s in order to make and use applicant’s design. The Board concluded that because the single view does not adequately reveal the relative depths and three dimensionality between the surfaces provided, the Specification does not reveal enough detail to enable the claimed shoe bottom, under 35 U.S.C. § 112, first paragraph, and that the same lack of clarity and detail also makes the scope of the claim indefinite under 35 U.S.C. § 112, second paragraph.
The Federal Circuit noted that because patent claims are limited to what is shown in the application drawings, there is often little difference in the design patent context between the concepts of definiteness (whether the scope of the claim is clear with reasonable certainty) and enablement (whether the specification sufficiently describes the design to enable an average designer to make the design). The Federal Circuit said that a visual disclosure may be inadequate — and its associated claim indefinite — if it includes multiple, internally inconsistent drawings. Errors and inconsistencies between drawings do not merit a § 112 rejection, however, if they do not preclude the overall understanding of the drawing as a whole.
It is also possible for a disclosure to be inadequate when there are inconsistencies between the visual disclosure and the claim language. However, the Federal Circuit said the present case does not involve inconsistencies in the drawings, or inconsistencies between the drawings and the verbal description, but rather a single representation of a design that is alleged to be of uncertain scope. The Federal Circuit said the question was whether the disclosure sufficiently describes the design.
The purpose of § 112’s definiteness requirement, then, is to ensure that the disclosure is clear enough to give potential competitors (who are skilled in the art) notice of what design is claimed and therefore what would infringe. With this purpose in mind, it is clear that the standard for indefiniteness is connected to the standard for infringement. Given that the purpose of indefiniteness is to give notice of what would infringe, in the context of design patents, one skilled in the art would assess indefiniteness from the perspective of an ordinary observer.
Thus, a design patent is indefinite under § 112 if one skilled in the art, viewing the design as would an ordinary observer, would not understand the scope of the design with reasonable certainty based on the claim and visual disclosure. So long as the scope of the invention is clear with reasonable certainty to an ordinary observer, a design patent can disclose multiple embodiments within its single claim and can use multiple drawings to do so.
The fact that shoe bottoms can have three-dimensional aspects does not change the fact that their ornamental design is capable of being disclosed and judged from a two-dimensional, plan- or planar-view perspective, and that Maatita’s two-dimensional drawing clearly demonstrates the perspective from which the shoe bottom should be viewed. A potential infringer is not left in doubt as to how to determine infringement.
In this case, Maatita’s decision not to disclose all possible depth choices would not preclude an ordinary observer from understanding the claimed design, since the design is capable of being understood from the two-dimensional, plan- or planar-view perspective shown in the drawing.
Because a designer of ordinary skill in the art, judging Maatita’s design as would an ordinary observer, could make comparisons for infringement purposes based on the provided, two-dimensional depiction, Maatita’s claim meets the enablement and definiteness requirements of § 112. The Federal Circuit reversed the decision of the Board.


When a bill of exceptions does not contain the evidence, it is impossible for this Court to know the ground on which the trial court proceeded in overruling a motion on the evidence to compel the district attorney to elect, and an exception in that regard will not be considered.
In December, 1894, when the proceedings took place which are questioned in this case, there were not two Judicial Districts in the State of South Carolina, to the territorial limits of each of which the jurisdiction of the Circuit Court of the United States was confined.
The legislation on this subject from the commencement of the government reviewed.
"at a Circuit Court of the United States for the Fourth Circuit in and for the District of South Carolina, begun and holden at Columbia, in the district aforesaid, on the fourth Monday in November, 1894, before the Honorable Wm. H. Brawley, United States Judge for the District of South Carolina, holding said circuit court according to the form of the act of Congress in such cases made and provided,"
for conspiracy to commit an offense against the United States, under sections 5440 and 5480 of the Revised Statutes, and, having been duly tried, was found guilty, and sentenced to imprisonment and fine.
To review this judgment, this writ of error was prosecuted.
"To-wit: In the Circuit Court"
oaths respectively do present that Charles P. Barrett [and others, naming them], together with divers other evil-disposed persons to the jurors aforesaid unknown, late of the district aforesaid, on the 1st day of July, in the year of our Lord 1892 at Spartanburg, in the State of South Carolina aforesaid, in the district aforesaid, and within the jurisdiction of this Court, being persons of evil minds and dispositions, wickedly devising and intending to commit the offense against the United States hereinafter set forth, fraudulently, maliciously, and unlawfully did combine, conspire, confederate, and agree together between and among themselves to commit against the United States this offense,"
and Eastern Districts of South Carolina, although the offense was alleged to have been committed in the County of Spartanburg, in the Western District; because the indictment was found in the County of Richland, in the Eastern District at a time not authorized by law for the sitting of the United States court for the Western District, and because the trial was had in the County of Richland, in the Eastern District, for an offense committed in the Western District.
As to the action of the court overruling defendant's motion on the evidence to compel the district attorney to elect, the bill of exceptions does not contain the evidence, and it is impossible for this Court to know the ground on which the circuit court proceeded. The exception in that regard need not therefore be considered.
In respect of the other exceptions, they all present the same objection in different forms -- namely, that the State of South Carolina was divided into two Judicial Districts, and that an indictment could not be lawfully found in the circuit court of the United States held in the Eastern District, or a trial be therein had, for a criminal offense committed in the Western District.
"where the crime shall have been committed, but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed,"
which district shall have been previously ascertained by law."
This indictment was found December 3, the trial had December 6 to 11, and the defendant sentenced December 12, 1894, in the circuit court in session at Columbia. Were there at that time two judicial districts in South Carolina, within the intent and meaning of the Constitution and the acts of Congress in that behalf?
The circuit court of each judicial district sits within and for that district, and its jurisdiction, as a general rule, is bounded by its local limits. Toland v. Sprague, 12 Pet. 300, 37 U. S. 328; Ex Parte Devoe Manufacturing Company, Petitioner, 108 U. S. 401. At the same time, courts may be required to be held at different places in a judicial district, and prosecutions for offenses committed in certain counties may be required to be tried, and writs and recognizances to be returned at each place; but this does not affect the power of the grand jury sitting at either place to present indictments for offenses committed anywhere within the district. Logan v. United States, 144 U. S. 263. As to where trials shall be had in a judicial district depends entirely on the legislation upon the subject. Rosecrans v. United States, 165 U. S. 257; Post v. United States, 161 U. S. 583.
By the Judiciary Act of September 24, 1789, the then United States were divided into thirteen districts, of which New Hampshire, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Georgia, and South Carolina each constituted one district, called by the name of the state, as, for instance, "South Carolina District;" while a part of the State of Massachusetts was erected into a district called "Maine District," and a part of the State of Virginia into a district called "Kentucky District;" the remaining part of the State of Massachusetts being made a district called "Massachusetts District," and the State of Virginia, except so much thereof as was thereby made the District of Kentucky, a district called "Virginia District." 1 Stat. 73.
by him, a district attorney, and a marshal, for each district. But that part of Massachusetts now constituting the State of Maine and that part of the State of Virginia now forming the State of Kentucky were erected into independent districts under the names of "Maine District" and "Kentucky District," and the district court established in each was invested with the powers of a circuit court.
By the fourth section, these districts, "except those of Maine and Kentucky," were divided into three circuits, called the "Eastern," the "Middle," and the "Southern" circuits, and it was provided that circuit courts should be held "in each district of said circuits" by two of the justices of the supreme court and "the district judge of such districts."
North Carolina having ratified the Constitution November 21, 1789, Congress, by the Act of June 4, 1790, 1 Stat. 126, c. 17, gave effect to the Judiciary Act of 1789 in that state, erecting it into a district to be called "North Carolina District," establishing a district court with one judge, and annexing the district to the Southern circuit. Rhode Island having ratified the Constitution May 29, 1790, a similar act to give effect to the Judiciary Act was passed June 23, 1790, 1 Stat. 128, c. 21, by which Rhode Island was annexed to the Eastern circuit.
From the first, then, district courts have been, in exceptional instances, vested with circuit court jurisdiction.
cognizable in the district courts of the United States which may hereafter arise or be prosecuted, or sued, within the said Western District, there shall be one annual session of the said district court holden at Laurens courthouse, to begin on the second Monday in May in each year; to be holden by the district judge of the United States of the State of South Carolina, and he is hereby authorized and directed to hold such other special sessions as may be necessary for the dispatch of the causes in the said court at such time or times as he may deem expedient, and may adjourn such special sessions to any other time previous to a stated session."
"the times of holding the district court of the United States at Laurens courthouse, South Carolina, shall be so altered that the said court shall hereafter convene on the Tuesday next ensuing, after the adjournment of the circuit court of the United States at Columbia."
On March 3, 1825, this act was amended by providing that "the Circuit Court for the District of South Carolina at Columbia, South Carolina, shall commence on the fourth Tuesday of November, annually." 4 Stat. 124, c. 78.
By an Act of May 4, 1826, c. 37, the sessions of the circuit court "for the District of South Carolina" were again changed, 4 Stat. 160, and again February 24, 1829, 4 Stat. 335.
"that the spring term of said court shall be held in and for the district of South Carolina at Charleston, on the Wednesday preceding the fourth Monday of March."
"for holding the district court of the United States at Laurens courthouse, South Carolina, on the Tuesday next ensuing after the adjournment of the circuit court of the United States at Columbia, be and the same is hereby repealed, and that in place thereof the said court shall be held at Greenville courthouse, South Carolina, on the first Monday in August in each year."
"the said district court for Greenville, in addition to the ordinary jurisdiction and powers of a district court of the United States, shall have jurisdiction of all causes (except appeals and writs of error) which now are or may be hereafter made cognizable in a circuit court of the United States, and shall proceed in the same manner as a circuit court."
The Act of July 15, 1862, 12 Stat. 576, c. 178, provided that "the districts of South Carolina, Georgia, Alabama, Mississippi, and Florida, shall constitute the Fifth Circuit," and repealed the act or acts which vested circuit court powers in the district courts for the Districts of Texas, Florida, Wisconsin, Minnesota, Iowa, and Kansas; while by the Act of March 3, 1863, 12 Stat. 793, c. 100, the Districts of California and Oregon were constituted the Tenth Circuit, and so much of any act or acts as vested in the district courts for California and Oregon the power and jurisdiction of circuit courts was repealed.
By the Act of July 23, 1866, 14 Stat. 209, c. 210, it was provided that "the Districts of Maryland, West Virginia, Virginia, North Carolina and South Carolina shall constitute the Fourth Circuit."
was not to be construed "to require a circuit court to be held in any judicial district in which a circuit court was not required to be held by previously existing law," 16 Stat. 179.
In the Ku Klux cases, tried in the circuit court at Columbia in the fall of 1871 before Circuit Judge Bond and district judge Bryan, Mr. Reverdy Johnson objected to the issue of a venire to summon additional grand and petit jurors "from the body of the district" embracing the whole state, though he admitted that "it is true that the circuit court has jurisdiction, as a court, over the entire District of South Carolina." The court ruled that so far as the circuit court was concerned, there was but one district in South Carolina. South Carolina Ku Klux Trials, pp. 8-10.
"SEC. 530. The United States shall be divided into judicial districts as follows:"
"SEC. 531. The States of California, Connecticut, Delaware, Indiana, Iowa, Kansas, Kentucky, Minnesota, Nebraska, Nevada, New Minnesota, Nebraska, Nevada, New Hampshire, New Jersey, Oregon, Rhode Island, Vermont, and West Virginia each constitute one judicial district."
"SEC. 546. The State of South Carolina is divided into two districts, which shall be called the Eastern and Western Districts of the district of South Carolina. The Western District includes the Counties of Lancaster, Chester, York, Union, Spartanburg, Greenville, Pendleton, Abbeville, Edgefield, Newberry, Laurens, and Fairfield, as they existed February 21, 1823. The Eastern District includes the residue of said state."
"SEC. 551. A district judge shall be appointed for each district except in the cases hereinafter provided. Every such judge shall reside in the district for which he is appointed. . . ."
"SEC. 552. There shall be appointed in each of the states of Alabama, Georgia, Mississippi, South Carolina and Tennessee one district judge, who shall be district judge for each of the districts included in the state for which he is appointed, and shall reside within some one of the said districts. . . . "
"SEC. 571. The District Courts for the Western District of Arkansas, the Eastern District of Arkansas at Helena, the Northern District of Mississippi, the Western District of South Carolina, and the District of West Virginia shall have in addition to the ordinary jurisdiction of district courts jurisdiction of all causes, except appeals and writs of error, which are cognizable in a circuit court, and shall proceed therein in the same manner as a circuit court."
"SEC. 572. The regular terms of the district courts shall be held at the times and places following: . . . In the Eastern District of South Carolina at Charleston, on the first Monday in January, May, July, and October. In the Western District at Greenville, on the first Monday in August."
"SEC. 604. The judicial districts of the United States are divided into nine circuits as follows: . . . Fourth. The Fourth Circuit includes the Districts of Maryland, Virginia, West Virginia, North Carolina, and South Carolina. . . ."
"SEC. 608. Circuit courts are established as follows: one for the three districts of Alabama, one for the Eastern District of Arkansas, one for the Southern District of Mississippi, and one for each district in the states not herein named, and shall be called the circuit courts for the districts for which they are established."
"SEC. 658. The regular terms of the circuit courts shall be held in each year at the times and places following: . . . In the District of South Carolina at Charleston on the first Monday in April, and at Columbia on the fourth Monday in November."
"SEC. 767. There shall be appointed in each district, except in the Middle district of Alabama and the Northern District of Georgia and the Western District of South Carolina, a person learned in the law to act as Attorney for the United States in such district. . . . The district attorney of the Eastern District of South Carolina shall perform the duties of District Attorney for the Western District of said state."
Section 776 makes similar provision as to United States marshals for said districts.
"SEC. 563. The district courts shall have jurisdiction as follows: "
"First. Of all crimes and offenses cognizable under the authority of the United States committed within their respective districts, . . . the punishment of which is not capital. . . ."
"SEC. 629. The circuit courts shall have original jurisdiction as follows: . . . Exclusive cognizance of all crimes and offenses cognizable under the authority of the United States except where it is or may be otherwise provided by law, and concurrent jurisdiction with the district courts of crimes and offenses cognizable therein."
"under titles, chapters, and sections, or other suitable divisions and subdivisions, with headnotes briefly expressive of the matter contained in such divisions; also with side notes so drawn as to point to the contents of the text and with references to the original text from which each section is compiled."
By the Act of March 2, 1877, 19 Stat. 268, c. 82, the preparation and publication of a new edition of the Revised Statutes was provided for, the work to be done by a single commissioner, who was required to add to the marginal references made in the previous revision.
as in the case here. 19 Stat. 268, c. 82, § 2; Endlich on Int. Statutes, § 51."
Section 546 appears under "Title XIII. The Judiciary. Chapter One. Judicial Districts," and the cross-reference in the margin is to the act of "21 Feb. 1823, c. 11, § 1 v. 3, p. 726."
When, then, Congress enacted this section, it seems to have construed the act of 1823 not as dividing the state into two judicial districts, as indicated in the title of the act, but into two districts in the sense of geographical divisions, which is in harmony with the language used in the body of the act. At all events, the phraseology of section 546 is only consistent with the conclusion that the state constituted but one judicial district, containing two divisions, which were "called the Eastern and Western Districts of the district of South Carolina."
And it should be remembered that there was, during all this time (and this has prevailed from thence hitherto), but one judge, one attorney, and one marshal for the District of South Carolina.
"The District of South Carolina is divided into two divisions, which will be called the Eastern and Western divisions of the District of South Carolina. The Western Division includes the Counties of Lancaster, etc., as they existed February 21, 1823. The Eastern Division includes the residue of said state."
words actually employed, "of the District of South Carolina," were inadvertently inserted, and should be rejected altogether.
It should be noted that by section 608, circuit courts were established for each district in the states not therein named, the states specified being Alabama, Arkansas, and Mississippi, and yet that, by section 571, certain district courts, including that for the Western District of South Carolina, retained circuit court powers.
"As to the question of the jurisdiction of this Court throughout the entire State of South Carolina, we decide, for the purposes of this trial, in favor of the jurisdiction. This is in accordance with the uniform practice of the court, without objection from any quarter, for nearly half a century."
United States v. Butler, 1 Hughes 457, 463.
"All parts of the State of South Carolina are within the jurisdiction of this court. Its process runs all through the state. It does not know, in the sense which affects its jurisdiction, either the Eastern or Western District."
Young v. Merchants' Ins. Co., 29 F. 273, 275.
"established a Circuit Court of the United States in and for the Western District of Arkansas, the Northern District of Mississippi, and the Western District of South Carolina, respectively, as the said districts are now constituted by law,"
and withdrew circuit court powers from said district courts.
first Monday of February and on the first Monday in August; in the City of Charleston on the first Monday of April, and in the City of Columbia on the fourth Monday of November,"
"the office of the clerk of said court shall be kept in the Cities of Charleston and of Greenville, and the clerk shall reside in one of the said cities, and shall have a deputy in the other."
And although the act then went on to prescribe terms "of the district courts for the Eastern District of South Carolina," and "of the district court in the Western District of South Carolina," we think the operation of the prior sections was not thereby affected.
It may be added that in the Legislative, Executive, and Judicial Appropriation Act of May 28, 1896, c. 252, §§ 7, 9, appropriations were made for the salaries (among others) of the United States District Attorney "for the Eastern and Western Districts of the District of South Carolina" and of the United States Marshal "for the Eastern and Western Districts of the District of South Carolina." 29 Stat. 140.
From this review of the statutes, we are unable to arrive at any other conclusion than that, in 1894, when these proceedings were had, there were not two judicial districts in the State of South Carolina to the territorial limits of each of which the jurisdiction of the circuit court was confined, and that the exceptions in this regard must be held not to have been well taken.
It is also suggested in the brief for plaintiff in error that error supervened in that the record does not affirmatively show the issue of the venire for the grand and petit juries, nor that the defendant was arraigned; nor that he was personally present when the verdict was rendered and sentence pronounced.
were saved to any of these proceedings other than the exceptions before mentioned.


text:
C. Farren singled, bunt; M. Lahn advanced to third.
W. Krushena reached first on a fielding error by lf, advanced to third, RBI; C. Farren scored, unearned; M. Lahn scored.
D. Spencer singled up the middle, RBI; W. Krushena scored, unearned.
M. Lahn singled to second base.
V. Suso homered to left field, RBI.
T. Robinson homered to center field, RBI.
W. Krushena singled to left field.
D. Spencer singled through the left side; W. Krushena advanced to second.
V. Walker singled, bunt; D. Spencer advanced to second; W. Krushena advanced to third.
C. Wood homered to right field, 4 RBI; V. Walker scored; D. Spencer scored; W. Krushena scored.
M. Lahn doubled down the lf line.
K. Harris reached first on a fielding error by 3b.
K. Harris advanced to second on a wild pitch.
D. Spencer reached first on a fielding error by lf, advanced to second; T. Robinson scored, unearned.
V. Walker singled to shortstop; D. Spencer advanced to third.
C. Wood flied out to cf, SAC, RBI; D. Spencer scored, unearned.
R. Mitchell walked; V. Walker advanced to second.
A. Ruggieri tripled to right center, 2 RBI; R. Mitchell scored, unearned; V. Walker scored, unearned.
D. Ange to p for L. Huffman.
M. Lahn tripled to right center, RBI; A. Ruggieri scored, unearned.
C. Farren doubled to left center, RBI; M. Lahn scored, unearned.
C. Farren advanced to third on a passed ball.
A. Gould doubled to left center.
Z. Bailey doubled down the lf line, RBI; A. Gould scored.
C. Wood walked; D. Spencer advanced to second.
C. Wood advanced to second on a wild pitch; D. Spencer advanced to third.
R. Mitchell singled to shortstop, RBI; C. Wood advanced to third; D. Spencer scored.
A. Ruggieri walked; R. Mitchell advanced to second.
M. Eversole to p for D. Ange.
T. Robinson singled to right field.
W. Krushena singled through the right side; T. Robinson advanced to second.
N. Dimmitt to c for D. Spencer.
D. Kurtzer to p for D. Brackman.
V. Suso doubled down the lf line.
V. Suso advanced to third on a wild pitch.
Z. Bailey singled up the middle, RBI; V. Suso scored.
P. Emerine pinch hit for K. Workman.
P. Emerine singled through the left side; Z. Bailey advanced to second.
C. Caithaml singled to center field, advanced to second on the throw, RBI; P. Emerine advanced to third; Z. Bailey scored.
V. Petrillo singled through the right side, 2 RBI; C. Caithaml scored; P. Emerine scored.
K. Harris hit by pitch; V. Petrillo advanced to second.
K. Lippman to p for D. Kurtzer.
A. Perrella walked; K. Harris advanced to second; V. Petrillo advanced to third.
R. Mitchell advanced to second on a wild pitch.
M. Lahn flied out to cf, SAC, RBI; R. Mitchell scored.

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


text: sphynix06 You can ask them to CUE themself but you got to make sure every T is crossed and I’s dotted . VA’s failure to give a sympathetic reading to the veteran’s filings by determining all potential claims raised by the evidence, applying all relevant current laws and regulations. Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004). ∙ VA’s failure to apply applicable, existing regulations or statute at that time. Look v. Derwinski, 2 Vet. App. 157, 163-64 (1992). ∙ VA’s failure to follow the regulations that govern whether an existing disability rating should be reduced, namely 38 C.F.R. §§ 3.343 and 3.344. Olson v. Brown, 5 Vet. App. at 434; Ternus v. Brown, 6 Vet. App. 370, 376 (1994); Sorakubo v. Principi, 16 Vet. App 120, 123-24 (2002). ∙ VA’s failure to properly apply the Schedule of Rating Disabilities. Myler v. Derwinski, 1 Vet. App. 571, 574-75 (1991). ∙ VA’s failure to apply 38 C.F.R. § 3.303(b) which establishes a presumption of service connection for chronic diseases diagnosed in service. Groves v. Peake, 524 F.3d 1306 (Fed. Cir. 2008). ∙ VA’s failure to apply the regulation that governs conditions that preexist service. Joyce v. West, 19Vet. App. 36 (2005); see also Sondel v. West, 13 Vet. App. 213 (1999) and Akins v. Derwinski, 1 Vet. App. 228 (1991). Unsuccessful CUE Claims Additionally, the following are examples of unsuccessful CUE claims: ∙ VA’s reliance on medical diagnosis in a BVA denial was incorrect in light of a medical diagnosis rendered after the BVA denial. ∙ VA’s failure to fulfill the duty to assist. ∙ BVA’s failure to properly weigh or evaluate the facts (weight of evidence). ∙ Change in the interpretation of a statute or regulation occurring after BVA decision. try to get that bad examiners credentials …he/she may not be qualified to do a MST C&P and can not give a Diagnoses….if so use that as reason you requesting another C&P Exam with different Dr, you have that right….if a veteran lets things like this go and not fight it they love it. A New C&P and Qualified & a common sense examiner is what you need and I bet you will be approved…depending on your symptoms as for as your rating, but service connection should be established.

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§ 1. The Association's name is the patient Insurance Association. Its head office is in Copenhagen.
§ 2. The Association's purpose is to administer the law on complaint and redress access within the health service regulated the patient insurance system. The Association shall receive, inform and determine all claims in accordance with the law, in accordance with article 3. However, paragraph 3 as well as the rules laid down pursuant to article 19, paragraph 5.
(2). The Association shall also with insurance companies and even reassuring authorities conduct collection to cover the damages, which shall be paid in accordance with rules laid down pursuant to article 30, paragraph 5.
(3). The Association may, in accordance with obtained approval from the Interior and the Minister of health may authorize individual insurance companies and even reassuring authorities to inform and decide cases described in more detail.
(4). The Association must provide the information to Patient injury Board of appeals and the Ministry of the Interior and health, which are necessary for the performance of tasks of these authorities in accordance with the law.
2) insurance undertakings which have subscribed insurances subject to the law on complaint and redress access within the health system, and that has given the patient Insurance Association informed (insurers), see. However, paragraph 2.
(2). Paragraph 1 shall not apply to the private institutions, for which the Interior and the Minister of health, pursuant to section 19, paragraph 5, has completely terminated the examination of cases in accordance with the law.
§ 4. Members are bound by the provisions relating to insurance against civil liability implementation, to be determined by the Interior and the Minister for health.
§ 5. A member who ceases to be himself, reassuring respectively with taking out insurance policies covered by the law on complaint and redress access within health care, leaving the Association no later than the calendar year.
(2). No Member may, by leaving the Association evade the obligations and/or expenses borne by it in accordance with the law on complaint and redress access within healthcare and provisions established thereunder.
1) 1 Board member appointed by the Interior and the Minister for health.
2) 6 Board members are appointed for four-year periods, the first time for the 2010-2013 by councils in the regions ' society and the National Association of local authorities in relation to regions and municipalities ' share of the expected number of annual insurance claims in accordance with the law as determined by the patient Insurance Association's Board of Directors for the period's first year.
(2). Interior and Health Minister may, after consultation of the Board allow insurers to appoint members of Board of Directors collectively in a set period of time by the Minister in relation to their expected share of the total number of claims in accordance with the law as determined by the patient Insurance Association's Board of Directors.
(3). There may be designated permanent alternates for the members of the Management Board.
(4). The outgoing Board of Directors continues its operation until new members are appointed and the new Board of Directors is constituted.
§ 7. The Board shall fix the remuneration of the members and the President.
§ 8. The Management Board shall elect from among its members a Chairman and a Vice-Chairman, who in the President's absence comes into his place.
(2). The Board of Directors shall be convened whenever the President deems it necessary, or when at least 3 members of the Board of Directors put forward request. Agenda must be specified.
(3). Taking into account of the meetings of the Management Board.
(4). The Board is a quorum when more than half of the Board members, including the Chairman or the Deputy Chairman, are present. The Board's decisions are made by ordinary majority of votes. In the event of a tie the President's vote is decisive.
§ 9. The Board of Directors shall approve the Corporation's financial statements and making choice of Auditor, see. § 15.
(2). The Management Board shall, in addition, more detailed provision on the execution of its duties by a rules of procedure approved by the Interior and the Minister for health.
The Association's operation, economy, etc.
§ 10. The Association's daily business is carried out by a secretariat, headed by a person appointed by the Board of Directors.
§ 11. Costs of the Association's operation and administration as well as the cost, which is in fact imposed on the Association in accordance with the law on complaint and redress access within health care, shall be borne by each of the insurers and the individual himself, reassuring authorities in proportion to their respective shares of reviews in accordance with the law. The Board may set a minimum contribution for the coverage of the in 1. paragraph referred to expenses.
(2). Insurers and even reassuring authorities jointly and severally liable for the costs referred to in paragraph 1 under the same distribution key.
(3). Expenses incurred by the Association for the in section 30, paragraph 5, no. 1 and 2, referred to pools is paid by insurers in relation to individual insurers shares by the number of reviews from insurable.
(4). In section 30, paragraph 5, no. 3, said damages are paid by insurers and even reassuring authorities in proportion to their respective shares of reviews in accordance with the law.
§ 12. The Association shall issue an annual report to the Minister of the Interior and its activities, see. Article 32, paragraph 3.
§ 13. The Association shall be bound by the Board's President or Vice-President in association with another Member of the Board or with the head of the Association's secretariat.
§ 14. The Association's financial year is the calendar year.
§ 15. The Association's accounts are audited by a chartered or certified accountant, see. § 9.
§ 16. The Association's bylaws may be amended by the Interior and Health Minister after received the opinion of the Board of Directors.
§ 17. The notice shall enter into force on the 1. January 2010.
(2). At the same time repealed Executive Order No. 1679 by 12. December 2006 on the statutes of the patient Insurance Association.