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Court rules against police who shot suicidal youth
By Bob Egelko on November 7, 2011 at 6:42 PM
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A woman in northwest Oregon called police late one night in 2006, saying her son was drunk and out of control, breaking windows and threatening to kill himself with a pocket knife. Officers arrived and found 18-year-old Lukus Glenn in his driveway, talking to his parents and friends, and holding the knife against his neck. Sheriff’s deputies ordered him to lie on the ground, and he complied but refused to drop the knife. Three minutes later, an officer arrived with a gun containing so-called “beanbag” rounds and fired six of them into Glenn’s body. As the youth rose and started to walk back toward the house, where his parents were standing, two officers fired their guns at him and killed him.
A federal judge found that the officers had used reasonable force, but on Friday, the Ninth U.S. Circuit Court of Appeals in San Francisco reinstated a lawsuit by Glenn’s parents against the Washington County deputies and said a jury should decide if they had overreacted.
Beanbag bullets, lead shot covered in cloth, are supposed to inflict pain rather than serious injury. But the court said they can cause grave injury or even death if they strike sensitive areas, and police are not entitled to use them against individuals who are threatening to kill themselves but pose no danger to anyone else.
In this case, the court said, Glenn was not threatening the officers, and a jury could determine whether he posed any risk to his family and friends, who stood nearby watching in horror.
Jurors could conclude “there was little evidence that he posed an immediate threat to anybody” when he was shot with the beanbag gun, the court said in a 3-0 ruling. They could also find that he was only trying to get away, and not endangering anyone but himself, when he rose and headed toward his house before the fatal shots.
The jury could also consider whether the officers had other options, the court said: They might have used a Taser, which is considered a less-harmful weapon and a more accurate one. Glenn’s mother said the 911 dispatcher had told her the officers would try to talk to her son. And a former police chief submitted a declaration saying the deputies had escalated the situation into “an unnecessary and avoidable shooting.”
The evidence presented so far “could support a verdict for either party, and the jury must resolve these factual disputes,” the court said in a ruling that can be seen at www.ca9.uscourts.gov/datastore/opinions/2011/11/04/10-35636.pdf. The officers could ask the full appeals court for a rehearing. Bob Egelko View Comments Top Videos Blog Search
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Home / Culture and Society / The NDAA is Much Less “Fixed” than They Claim The NDAA is Much Less “Fixed” than They Claim
Posted by: Dave Nalle January 6, 2012 in Culture and Society, Politics
Please Share...000000Once president Obama signed the National Defense Authorization Act (NDAA) it appears that word went out to all of the Senators and Representatives who voted for it that the bill was fixed and they should write their constituents reassuring them that it the bill no longer authorized the indefinite detention of US citizens inside our borders by the military on presidential order and without due process of law.
So the reassuring emails were sent to all the constituents who had lobbied against the passage of the bill with the military detention provisions included, and a lot of them were pacified by these earnest statements from legislators who likely either did not read or did not understand the totality of the NDAA as it was finally passed. They were convinced that the addition of the statements “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens” (1021.e) and “The requirement to detain a person in military custody under this section does not extend to citizens of the United States” (1022.b.1) actually fixed the problems with the bill.
What they failed to understand is that the first statement is meaningless because the authors of the bill and the president believe that they already had the power to detain civilians in military custody without due process even before this bill was passed, and that the second statement still uses the term “requirement” which means that while military detention of US citizens is not required in all cases as it is with foreign citizens, it is still an option if ordered by the president.
All they had to do to actually fix this bill was change the phrase “not required” in the original language to “prohibited” when referring to the military detention of US citizens and all of the complaints would have been satisfied. That they did not do this when every expert had told them it was the simple and obvious solution and that they instead engaged in misdirection and false assurances, demonstrates a cynical attitude towards the intelligence of the outraged public which had been loudly lobbying against this aspect of the NDAA.
While reassuring letters from Congressmen may have won over some former opponents, they are not fooling civil liberties lawyers who have actually read the bill and looked at the final wording in context. You don’t have to take my word for the persistence of military detention in the legislation because plenty of legal experts are speaking out against it. Sadly they don’t have the platform or authority of a letter from your trustworthy hometown Congressman.
On Justia.com Professor Joanne Mariner, director of the Hunter College Human Rights Program and formerly with Human Rights Watch, writes of the NDAA:
“Notably, section 1022(b)(1) does not exempt American citizens from the more important provisions in section 1021, which allow the military detention of broad categories of terrorist suspects. It does not, therefore, improve on the status quo by extending any new protections to Americans.
“Moreover, the specific exemption for American citizens in section 1022 could be understood as suggesting, by negative implication, that American citizens are covered by section 1021. Potentially reinforcing this view is the fact that an effort to amend section 1021 to exempt citizens failed in the Senate. If, in the future, judges decide to refer to the statute’s legislative history to help ascertain its scope, the lack of such an exemption may be determinative.”
And she dismisses the supposed promise of protection for US citizens from changes in the law, writing:
“the provision’s reference to “existing law” begs far too many questions. It is precisely the scope of existing law that is subject to vociferous debate and continuing litigation. Under the Bush administration, the law was interpreted to allow the indefinite detention of both citizens and non-citizens arrested anywhere in the world, including the United States.”
Benjamin Wittes, who is a senior fellow in Governance Studies at The Brookings Institution and co-director of the Harvard Law School-Brookings Project on Law and Security, writes in his FAQ explaining the NDAA that our rights were already essentially gone in practice and that the NDAA just formalizes this situation:
“The NDAA is really a codification in statute of the existing authority the administration claims. It puts Congress’s stamp of approval behind that claim for the first time, and that’s no small thing. But it does not–notwithstanding the widespread belief to the contrary–expand it. Nobody who is not subject to detention today will become so when the NDAA goes into effect.”
Although he does write off most of the concerns with the NDAA as being based on its ambiguities and ultimately left up to determinations by the courts, he also raises the additional concern that “the NDAA could theoretically be said to expand detention authority involves people held on the basis not of membership in an enemy group but mere support for one,” validating the concern that the applicability of military detention could be expanded to include people with no direct involvement in any terrorist activity.
In its press release on the signing of the bill, the ACLU is much more definitive about its concerns, quoting ACLU Executive Director Anthony D. Romero:
““The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield.”
And stating that:
“Under the Bush administration, similar claims of worldwide detention authority were used to hold even a U.S. citizen detained on U.S. soil in military custody, and many in Congress now assert that the NDAA should be used in the same way again.”
What is clear from reading all of this analysis of the bill is that although the final revision successfully muddied the waters, it did not fix the basic concerns with military detention of US citizens. That the government believed they already had the power before the passage of the NDAA does not excuse the authors of the bill from responsibility for formally codifying this practice.
It does to some degree reframe the debate, however. The argument is now much more basic, between those who believe that the NDAA should have been used as an opportunity to prohibit military detention and protect the rights of citizens, and those – like most members of Congress – who seem perfectly comfortable with giving the president the power to suspend foundational legal principles like Posse Comitatus and Habeas Corpus when even a hint of association with terrorism is involved.
detention law ndaa terror 2012-01-06
Dave Nalle
Tagged with: detention law ndaa terror
About Dave Nalle Dave Nalle is Executive Director of the Texas Liberty Foundation, Chairman of the Center for Foreign and Defense Policy, South Central Regional Director for the Republican Liberty Caucus and an advisory board member at the Coalition to Reduce Spending. He was Texas State Director for the Gary Johnson Presidential campaign, an adviser to the Ted Cruz senatorial campaign, Communications Director for the Travis County Republican Party and National Chairman of the Republican Liberty Caucus. He has also consulted on many political campaigns, specializing in messaging. Before focusing on political activism, he owned or was a partner in several businesses in the publishing industry and taught college-level history for 20 years. Previous: Live Chat: Once Upon a Time – Sunday, January 8 at 9 PM ET
Next: Movie Review: The Devil Inside
Obama has issued his NDAA Signing Statement. Here is mine: Americans must not be distracted by Corporate Fascist Puppet Barack Obama saying “my Administration will not authorize the indefinite military detention without trial of American citizens” in his signing statement for the National Defense Authorization Act of 2012 (H.R.1540). Presidential “signing statements” are political propaganda with no Constitutional basis. A President who breaches a signing statement covenant faces no more consequences than any other corrupt politician who renegs on a promise. By signing NDAA and attempting to give its unconstitutional provisions the force of law, Barack Hussein Obama became complicit with all of the bought-and-paid-for U.S. Senators and Representatives who voted for this bill, and along with them should be charged with Seditious Conspiracy under U.S. Code Title 18 Part I Chapter 115 Section 2384. Unless and until these vermin are arrested, charged and removed from office, I will no longer consider the government they infest to be legitimate. Nor will I respect any ruling to the contrary from a judicial system that grants rights of citizenship to corporate entities that treat settlements and penalties for criminal conduct as costs of doing business with no concerns about incarceration or execution to deter their illegal, immoral or unethical conduct.
Concerned about civil liberties? Please search for “New police weapon against homeless” on homeless forums. Bill Anderson
bringovdown
dethronehatch.com
Orrin Hatch is on the Finance Committee in the Senate- he’s voted for 16 debt ceiling increases and the NDAA- time for him to leave after 36 freaking years
If they don’t provide a due process, it’s not a legitimate arrest – it’s a authorized kidnapping!
Nationwide NDAA 2012 Congressional Protest is Feb. 3rd. Spread the word!
Rwolf
Americans Lose Constitution & Country To New Fascist Legislation
Almost every week there are published news accounts of Police Corruption, e.g. Police taking bribes, aiding & smuggling illegal drugs, robbing drug-dealers and committing perjury. ALERT! Perjury by police and their informants may now pose the greatest threat to Americans’ Freedom due to Congress in December 2011 passing (NDAA) The National Defense Authorization ACT of 2012. Under (NDAA) Government does not need probable cause or corroborating evidence to Indefinitely Detain Americans without charges, no right to an attorney, trial or Habeas Corpus; Police that falsify reports and give perjured testimony can now cause innocent Americans to be swept off the street and indefinitely incarcerated for being a suspected terrorist or supporting Terrorism: Note no violent act is required to be charged with involvement in terrorism under (NDAA). If that is not scary enough, Congress is now considering HR 3166 and S. 1698 also known as the “Enemy Expatriation Act” sponsored by Joe Lieberman (I-CT) and Charles Dent (R-PA) that would let Government Strip Your Citizenship Without a Conviction. Once an American’s Citizenship is stripped they have no rights whatsoever. To read article, search title: New Bill Known As Enemy Expatriation Act Would Allow Government To Strip Citizenship Without Conviction.
To read the full text of the bill, go here.
Currently there are several Multi-State Recall Petitions of Congressman that voted for The National Defense Authorization ACT of 2012.
Some observers believe NDAA included the vague term “Belligerent” in the manner it did, so U.S. Government would have authority granted by Congress to Indefinitely Detain large numbers of Americans not involved in terrorism. Under NDAA, U.S. Government can deem anyone a “Belligerent” for indefinite detention. The term “Belligerent” is so expansive and vague an American Citizen could be labeled a “Belligerent” for exercising First Amendment Rights–speaking out for or against any issue; protesting a U.S. Government Policy; agency or coalition Partner. It is foreseeable U.S. Government will threaten Americans with Indefinite Detention that refuse to act as informants. The East German Stasi Police used this tactic to create an army of neighborhood and other informants.
The passed (Defense Authorization Act of 2012) appears more threatening to Americans than (Hitler’s FASCIST 1933 Discriminatory LAWS) that suspended provisions in the Reich Constitution that Protected German Citizens’ Civil Liberties? For example–Hitler’s 1933 DISCRIMINATORY LAWS (stated fines and time limits) that German Citizens could be incarcerated for e.g., Serious Disturbance of the Peace, Provoking Public Unrest, Rioting; Acts that threatened National Security. In contrast Senators John McCain and Carl Levin’s passed National Defense Authorization Act of 2012–mandates holding Americans’ (Indefinitely) in Military Custody for being a mere “Belligerent.”
Under the passed National Defense Authorization, could some Americans (Retroactively) be subject to Indefinite U.S. Military or Prison Detention without charges or right to an attorney or trial? Consider most American activists don’t know what other activists and groups they networked or associated did in the past–perhaps illegal. Both the National Authorization Act of 2012 and USA Patriot Act are expansive and vague–what constitutes (1) supporting or aiding terrorists, (2) a terrorist act; (3) when someone is a “Combatant” or (4) “a Belligerent.” For example, Americans advocating, attending or supporting a meeting or protest demonstration against a U.S. Government Agency; Policy or U.S. Military Action–could be charged with (1) (2) (3) and (4) under NDAA and the Patriot Act. History Repeats: When other countries passed Police State Laws like The Defense Authorization Act of 2012, Citizens increasingly abstained from politically speaking out; visiting activist websites or writing comments that might be deemed inappropriate by their Police State Government, e.g. cause someone to lose their job; be investigated; disappeared and or detained in Police/Military Custody. Some writers might be dead-meat under NDAA. It appears that “Americans” who write on the Internet or verbally express an opinion against any entity of U.S. Government or its coalition partners–may under the Patriot Act or The Defense Authorization Act–be deemed by U.S. Government (someone likely to engage in, support or provoke violent acts or threaten National Security) to order an American writer’s indefinite military or prison detention. Is NDAA Retroactive? Can U.S. Government invoke provisions of NDAA or the Patriot Act to assert a U.S. Citizen’s past or current writings (protected by the 1st Amendment) supported or aided terrorists, provoked combatants or belligerents as a premise to order an author’s Indefinite Detention? The Defense Authorization Act of 2012 did more than Chill Free Speech–it may FREEZE IT! Consider: In mid-January 2012 Homeland Security announced the National Operations Center (NOC) received permission from Washington to monitor journalists and retain data on users of social media and online networking platforms. Could this Homeland Security spying, tracking Americans result in Citizens abstaining from visiting and posting comments on websites? It is not clear why Homeland Security wants to track users of social media and online networking platforms. You may read, search title: Homeland Security Monitors Journalists 1-7-12.
It should be expected that indefinitely detained U.S. Citizens not involved in terrorism or hostile activities, not given Miranda Warnings when interrogated or allowed legal counsel; will also be prosecuted for non-terrorist (ordinary crimes) because of their (alleged admissions) while held in Indefinite Detention.
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| The People v. Rocquemore
The People v. Rocquemore
THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,v.JOHNIE ROCQUEMORE ET AL., APPELLANTS.
APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
T. DELANEY, Judge, presiding.
The principal question presented for review is whether or not identification testimony at defendants' trial was constitutionally tainted by an illegal lineup. On November 8, 1967, the defendants were arrested and charged with the armed robbery of a service station. After being taken into custody, the defendants were advised by police officers that they had a right to remain silent and that they had a right to be represented by counsel during questioning. While defendants were not specifically advised as to their right to counsel at a lineup they were advised of "the right to have an attorney present at any time at their request and either before or during questioning or any time and if they were financially incapable of having an attorney present that they could or one would be supplied by the County." The defendants were placed in a lineup later that day, prior to indictment and without counsel. Present at the lineup were two police officers, three other prisoners who resembled the defendants, the three defendants and Thomas Soto. Soto was the lone attendant at the service station.
Defendants filed a motion to suppress the identification testimony and a hearing on said motion was held prior to trial. The two police officers and the three defendants testified at this hearing as defendants' witnesses. No testimony was offered by the People. The testimony of the defendants, if true, would show a tainted identification. This testimony was in direct conflict with the testimony of their other witnesses, the police officers. The police officers testified that a wire screen separated Soto from the defendants; the defendants testified that the police officers took Soto's hand and placed it on defendants. If they were separated by a screen, defendants' version cannot be true. Furthermore, the defendants contradicted each other in several important respects. The trial court denied the motion to suppress.
Later, at the trial, an in-court identification was made by Soto. Under these circumstances we find that the unproved charges of irregularities in conducting the lineup are insufficient to require rejection of the in-court identification.
Defendants also question their having been proved guilty beyond a reasonable doubt. There was a conflict in the testimony and the trial judge determined which witnesses were credible. We find no reason to disturb his findings.
The judgment of the circuit court of Cook County is affirmed.
Judgment affirmed. 19691219
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Sweepstakes to race tracks: Alumnus finds niche in gaming law
With the passing of Ohio’s Casino Initiative in 2009, Mike Zatezalo’s practice was bound to mature beyond helping children win tickets at Chuck E. Cheese or play McDonald’s Monopoly.
The initiative, which permitted four casinos to be built in Ohio, attracted a score of slot manufacturers and investors to Kegler Brown Hill & Ritter’s gaming law practice, which Zatezalo developed and now heads as managing director.
Zatezalo, a 1975 graduate of The Ohio State University Moritz College of Law, said while the caseload got heavier, it was manageable because the gaming community works collaboratively. In representing a number of gaming-related vendors, the firm commented on proposed legislation and communicated extensively with the Ohio Casino Control Commission and the Ohio Lottery Commission.
Gaming law, he said, primarily focuses on casinos, which are regulated by the Casino Control Commission. The lottery is overseen by the state and is connected with “racinos,” or gambling at horse tracks through video lottery terminals.
“My involvement with gaming law started as something that was just fun. It was almost the sidelight when I started it,” he said. “As I started meeting the top gaming lawyers from around the country, I developed a stronger interest in it.”
He added he never envisioned his career being geared toward gaming law, though, or even being set in Ohio. After graduating from Moritz, Zatezalo, who is an Ohio native, considered moving to California and was admitted to the California Bar. He decided to stay in Columbus for a position at the Ohio Attorney General’s Office as the head of the charitable law section, which required him to deal with licensing for charitable bingo and gambling.
“By the time I started working at the Attorney General’s Office and establishing roots in Ohio, I knew staying was the right decision ,” he said. “After you’ve been in Columbus a while, you realize how great a city it is and how great it is to practice law here.”
Zatezalo then worked as the head of consumer protection at the Ohio Attorney General’s Office for two years before beginning a private practice with his partner, Roger Sugarman.
In 1986, Zatezalo & Sugarman Co., L.P.A., which specialized in real estate, finance, administrative work, and litigation, merged with Kegler Brown. Zatezalo soon became the chair of the real estate and finance practice area for the firm. In 1999, he was elected the managing director of Kegler Brown and started developing the gaming law practice.
Since then, he’s taken on cases involving gaming equipment manufacturing, such as slot machines and video lottery terminals, and has represented businesses such as McDonald’s and Chuck E. Cheese on sweepstakes issues.
“There are several details that go into gaming that people don’t initially consider when they hear about this practice,” Zatezalo said. “It’s counterintuitive in a lot of ways. It’s an area where you have a lot of overlapping regulations – federal, state, and local. It becomes complex and is a specialty area since there are very few attorneys who practice it.”
Zatezalo said his experience in administrative law has been helpful with his practice.
“I’ve been used to doing things before state boards and agencies. The casino and the lottery commissions are both administrative bodies, and that experience helped tremendously,” he said. “My time in the Attorney General’s Office was also beneficial.”
Zatezalo also belongs to the International Masters of Gaming Law (IMGL), an organization he was invited to join around the same time he started Kegler Brown’s gaming law practice.
“It has been a great networking tool, and I’ve had a number of referrals from members of the group when someone needs counsel in Ohio,” he said. “IMGL is dedicated to educating professionals on all aspects of gaming law and connects you to colleagues across the globe.”
Zatezalo added his approach to gaming is similar to IMGL because of his interest in the gamers themselves.
“The psychology of gaming was always interesting to me,” he said. “I personally am not a gambler, and most of the attorneys that are involved in gaming really don’t gamble much at all. However, it’s an intriguing industry even though I don’t partake personally.”
This article was written by Sarah Pfledderer.
SideBar is a monthly electronic newsletter for Moritz College of Law alumni. Questions regarding this publication should be directed to [email protected].
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law Supreme Court upholds health care reform law
IN A 5-4 DECISION, the U.S. Supreme Court has upheld the entirety of President Barrack Obama’s health care law, including the individual mandate requiring health insurance coverage. BLOOMBERG FILE PHOTO/RICH CLEMENT Print
Thursday, June 28, 2012 10:59 am By Richard Asinof Contributing WriterTwitter: @RichardAsinof (Updated, 11:04 a.m.)
WASHINGTON – The U.S. Supreme Court issued its much-anticipated ruling this morning on the Patient Protection and Affordable Care Act, upholding the law, saying in a 5-4 decision that the law, with its mandate requiring health insurance coverage, was constitutional under the Congress’s taxing authority, not the Interstate Commerce clause.
The majority opinion, written by Chief Justice John G. Roberts, found that Congress had the constitutional authority because failure to comply with the individual mandate would be a tax penalty. As a result, people don’t have to get health insurance, but they will be required to pay a tax.
At the same time, the Supreme Court ruled that while the Medicaid expansion to broaden coverage was constitutional, it held that the “all or nothing rule,” which required states to participate in the expansion of coverage or lose their Medicaid funds, was not constitutional. The court ruled that states have the ability to opt out of the expanded coverage, which puts pressure on Congress to provide additional funds for the expansion.
The ruling upholds all the other reforms under the law.
“By upholding the law, the court validated the principle that all Americans should have access to health care,” said Sen. Sheldon Whitehouse. “Seniors will continue receiving discounts on prescription drugs, children can continue to stay on their parents’ health insurance policy after college, and individuals suffering from chronic illness won’t need to worry about running into lifetime caps.”
“Today the United States Supreme Court affirmed the legality of the Patient Protection and Affordable Care Act,” said Edward Quinlan, president of the Hospital Association of Rhode Island. “This is an important decision for our state’s hospitals and patients. More than 120,000 Rhode Islanders currently lack health insurance. Each day, nearly 150 patients seek care in our hospitals without the ability to pay. The cost of uncompensated care exceeded $160 million last year and has become a monumental fiscal burden for our struggling hospitals. The Affordable Care Act will help to alleviate these challenges and ensure that every Rhode Islander has access to quality health care.”
R.I. Health Insurance Commissioner Christopher F. Koller, who was outside the Supreme Court in Washington, D.C., when the decision was announced today, described the scene as “historic.” As a result of the decision upholding the health care reform law, Koller said the “commercial health insurance market will function much better with an individual mandate, with healthy people as well as sick people in the market.” Koller anticipated that there would be continuing discussions regarding what is the appropriate tax penalty for people who don’t buy health insurance.
u.s. supreme court, patient protection and affordable care act, taxing authority, interstate commerce, john g. roberts, medicaid, sheldon whitehouse, edward quinlan, hospital association of rhode island, uncompensated care Print
Chris Koller along with Governor Roberts, have put Rhode Island at the head of the pack in implementation. This will create jobs for Rhode Islanders as other states look to us for implementation assistance. Thanks to Chris and Deb.
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APG employee pleads guilty in theft of tons of copper wire
Timothy J. Bittner, 52, of Bel Air, pleaded guilty Tuesday to his role in the theft of copper wire from Aberdeen Proving Ground.The guilty plea was announced by Rod J. Rosenstein, United States Attorney for the District of Maryland; Special Agent in Charge Robert Craig of the Defense Criminal Investigative Service - Mid-Atlantic Field Office; the Directorate of Emergency Services, U.S. ArmyGarrison, Aberdeen Proving Ground; and Special Agent in Charge Richard A. McFeely of the FBI.
According to his plea agreement, Bittner worked as an electrician at APG's Department of Public Works. From March through November 2011, Bittner and his conspirators used their expertise as electricians to steal copper wire from government buildings and locations in the Edgewood area of APG for resale to metal recyclers for their personal gain.Bittner falsely reported his work time to disguise that he was stealing copper wire while on duty. Bittner and his conspirators took the stolen copper wire to their government vehicles in the APG parking lot and transferred the wire to their personal vehicles. They moved the stolen wire to their residences where they stripped the plastic coating off the wire by hand, which increased its market value. Bittner and his conspirators sold the copper to metal recyclers.
In June 2011, Bittner and his conspirators realized that a significant amount of copper wire was located in the ground under Eagle Point. For two days and while on duty, Bittner and his conspirators tied the exposed portion of the wire to their government vehicles, which they used to pull the wire out of the ground. Because the stolen wire weighed about five tons, Bittner and a co-conspirator rented storage space in Edgewood to store the stolen wire, and bought a stripping machine to remove the insulation from the copper wire at a much faster pace than by hand. Bittner and his conspirators sold the copper to metal recyclers in Maryland, Pennsylvania and Delaware as scrap, and divided the proceeds, which totaled more than $48,000.Finally, Bittner and a conspirator removed live copper wire from electrical junction boxes in the walls and ceiling of a government building. They also stole wire from another building as well as from three generators near Eagle Point. They sold this additional stolen wire for more than $30,000. The cost to the Army to purchase new copper wire to re-fit the two government buildings is $33,711, including labor.As part of his plea agreement, Bittner has agreed to forfeit $87,038, the amount of money he and his conspirators received from the sale of the stolen wire, and pay $33,711 in restitution.Bittner faces a maximum sentence of five years in prison for conspiracy to steal government. U.S. District Judge William D. Quarles, Jr. scheduled sentencing for Oct. 30 at 1 p.m.Rosenstein praised the DCIS, APG's Directorate of Emergency Services and the FBI for their work in the investigation. Rosenstein thanked Assistant U.S. Attorney Joyce K. McDonald, Special Assistant United States Attorney David I. Sharfstein, of theU.S. Department of JusticeTax Division, and Special Assistant U.S. Attorney Sean Marlaire, who are prosecuting the case.
Rod J. Rosenstein
Aberdeen Proving Ground
Four charged in theft of copper, aluminum from Aberdeen Proving Ground
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For Jasper County Judge Division 5
Incumbent Division 5 Associate Circuit Judge Richard Copeland is retiring after several years on the bench and two attorneys are running for the Republican nod to replace him.
Jasper County's court system has three circuit courts with one judge each, and three associate circuit courts with one judge each, and a family court commissioner.Associate Courts have general jurisdiction over civil cases with any cause of action under $25,000; small claims; traffic tickets; and criminal misdemeanors and felonies.The Division 5 Associate Circuit Court hears most criminal cases and a few civil cases. Criminal cases, especially felony cases, are heard by the Division 5 Associate Circuit Judge up until the preliminary hearing phase. If this judge finds, at a preliminary hearing, that there is enough evidence to believe a defendant might reasonably be found guilty of a crime, the case moves to the circuit court for trial. Incumbent Division 5 Associate Circuit Judge Richard Copeland is retiring after several years on the bench and two attorneys are running for the Republican nod to replace him.The winner of the Republican primary will likely win the office since there is no opposition in the November general election.The Carthage Press sent each of the two candidates a questionnaire with basic questions about the candidate's background and qualifications for the job. Here are their answers.
Name: Nate DallyQ. How long have you lived in Jasper County?A. 36 years my whole lifeQ. Talk about your background, family? A. I am lifelong resident of Jasper County, Missouri. My wife Maree and I have two sons, Jack and Hudson.After high school I attended the University of Missouri Columbia for Undergrad and Law School.Upon graduation I returned to his home in Jasper County, where I continue to serve as a prosecutor with Jasper County for 11 years. I have been a professor of criminal law at Crowder College and MSSU and serve on the Carthage R-9 Criminal Justice Advisory Board. I am a certified as a family and civil mediator and served as certified guardian ad item in domestic and probate cases.I have tried more than 30 jury trials, as well as tried more than 300 bench trial cases, and for seven years served as city of Carthage Attorney and Prosecutor while also being in private civil practice as a small business owner.I am active in the community. My family attend the First Presbyterian Church in Carthage where I serve as an Elder and Deacon. I am an Eagle Scout with the national organization, Boy Scouts. Past Campaign chair and current board member of the United Way. I am a recipient of the “Heart of MADD Award” from Mothers Against Drunk Driving, and have been endorsed by the President of the Jasper Newton County MADD Chapter, Bright Futures Carthage Site Council Member, State FFA Degree, Paul Harris Fellow, current President of the Carthage Rotary Club and proud lifetime member of the (NRA) National Rifle Association.Q. How long have you been an attorney? A. I have been and attorney and practice in Jasper County for 11 years.Q. What is your specialty in your practice? A. I have spent 11 years as a prosecutor for Jasper County, seven years as a prosecutor for the city of Carthage and have on occasion been appointed a special prosecutor for Newton County. In my private practice I have represented a local bank in associate collection cases as well as rent and possession. My private practice is focused on civil trial work and have extensive work in associate civil/small claims and rent and possessions. Q. Why did you want to be an attorney? A. Being an attorney has always been a passion of mine from a young age. I especially enjoy working with victims of crimes and helping them find justice when they have been wronged. Q. Why do you want to be a judge? A. As a Judge you placed in a unique position of getting to see the entire case as opposed to advocating for a particular side or client and justice for all, is a clear and focused passion of mine. A passion which allows the people of Jasper County to know that as Judge, I will be driven to provide an open and respectful courtroom, ensuring all citizens have equal, fair and impartial treatment within the Jasper County judicial system.Q. What makes a good judge? A. It is important to have a judge who is open and fair and that will leave all sides feeling a sense of justice. It’s important to the small business owner whotakes risk every day knowing there’s a judicial system that will help protect him or herfrom those who would aim to do them wrong. It’s important to Mom’s and Dad’s knowingour county is leading the way in Missouri in serving swift and due justice to those whoinflict pain on, or who choose to hurt our children. I believe Justice is one of the mostimportant foundations to any community leading the way in our pursuit of life, liberty andjustice for allQ. What special challenges/benefits do you see in being a judge in Jasper County? A. The specific challenges of Division 5 are the vast amount of felony criminal cases that come before that division. Division 5 handles almost 85% of all felony cases that are filed in Jasper County. Unlike other areas of the law the people who are charged with felonies have the potential to cause great harm on the citizens of Japer County. Setting appropriate bonds and assessing appropriate sentences on criminal defendants is a big challenge a challenge that must be met with experience to prevent the wrong people from getting out and harming others.Q. Why are you qualified to be a judge in Jasper County? A. Division 5 by design is a criminal docket. Over the past 11 years as a prosecutor for Jasper County and for the City of Carthage, I have had the honor and privilege to help those who have been harmed by the criminals in Jasper County. I have helped bring justice for our families and businesses who have been harmed by criminals. This divisions needs a judge who knows the criminal code and criminal procedure. A judge who has not only continued to receive specific criminal law training every year for the past 11 years but who has also taught Criminal Law and Criminal Procedure at MSSU and Crowder College. A Judge who has received the endorsement from the Fraternal Order of Police.This division also serves a s a large associate Docket handling small claims and rent and possessions. I have focused on this area of the law in my private practice representing indificual landlords, tenants and a local Bank.
Name: Joe HensleyQ. How long have you lived in Jasper County? A. 1973 to the present with the exception of 1991-1998 College and Law School and 1998 - 2002 Springfield.Q. Talk about your background, family?A. My family has lived in Jasper County for over 100 years. My grandfathers and father, Jerry Hensley, were machinists and tool-and-die makers. My mother, Lucinda Copeland, worked in clerical jobs and is married to the Hon. Richard Copeland. I am the first in my family to graduate college. I married another Jasper County native, Dina (Moore), in 2000 and we have two children (Ella (8) and Joe (6)). We attend Carterville Christian Church.Q. How long have you been an attorney? A. 16 yearsQ. What is your speciality in your practice?A. Litigation.Q, Why did you want to be an attorney?A. I was accepted into Mizzou’s law and medical schools. I chose law because I believed it better fit my interests of reading and writing.Q. Why do you want to be a judge? A. My favorite part of practicing law is the intellectual challenge of the job and the real opportunity to make daily changes in people’s lives. After 16 years of doing what I believe to be good work for the people of Jasper County, I feel my education and experience qualify me to try it from the other side of the bench.Q. What makes a good judge?A. As Oliver Wendell Holmes, Jr., wrote, the “life of the law has not been logic: it has been experience.” There is no substitute for a broad range of experience, both in the subject matter of the law and practicing in many types of courts and cases. Patience, creativity, and discipline are also important.Q. What special challenges/benefits do you see in being a judge in Jasper County? A. The challenges include the sheer number of cases filed and the time constraints in which those cases have to be disposed. The benefits are the wide variety of cases that an Associate Judge hears as a court of general jurisdiction, so it should never be dull or routine.Q. Why are you qualified to be a judge in Jasper County? A. I have studied Associate Circuit Courts in many counties for 16 years. In Jasper County, the caseload for Division 5, cases that could be disposed in Division 5, was 91 percent civil and 9 percent criminal last year. I have handled every type of case that could come before Division 5 for the last 16 years, whether it be civil, criminal or juvenile. I not only understand these issues from the standpoint of a lawyer and an adult, but as a child from a broken home, the “best interests of the child” standard has a very personal meaning to me, and I am passionate about it. Q. Anything else you'd like to tell the public about you, your qualifications?A. I was the first to announce my candidacy for the Division 5 position in Joplin a year ago. This position is neither a “stepping stone” nor a second choice for me. Like Judge Copeland, I would be honored to have this position for many years. I represent families and businesses, and I built my practice from the ground up. I would bring both experience and common sense to the disputes that affect people. Finally, I have a strong work ethic and subject only to ethical constraints, I am willing and best able to judge any case, work any docket, and hear any matter assigned to me without qualm or complaint.
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‘No-knock’ warrants under scrutiny
Habersham toddler injured in raid stirs debate on whether technique is appropriate
By Emma
Witman
June 7, 2014 11:50 p.m.
When a 19-month-old toddler was injured in the execution of a “no-knock” warrant, it raised questions on whether the technique is appropriate and safe.
A “no-knock” warrant allows a law enforcement officer to enter a dwelling or other location by surprise. But in a troubling twist, it was Habersham County officers who were surprised during a May 28 raid in Cornelia when they found young Bounkham Phonesavanh, as well as three other children, living in the residence.
“Bou Bou,” as he is called, remains in critical care after suffering burns to his face and chest from a flash grenade.
But Hall County Sheriff’s Office Major John Latty said while no-knock warrants often are invoked in discussion, they are not common.
“We hear a lot about it because quite often things occur that trouble our citizens, but they are relatively rarely used,” he said.
Latty is commander of the Enforcement Bureau, which oversees areas including criminal investigations, special operations, patrol and training.
“I would say less than 1 percent of search warrants are no-knock,” Latty said, adding, “far less than 1 percent.”
Beyond his law enforcement experience, including 25 years in Gwinnett County, Latty has an academic’s knowledge of the history and legality of no-knock warrants: he taught for more than a decade at Columbus State University on topics from legal liability to proper use of force and execution of search and seizure.
“The use of the no-knocks really grew exponentially from 1980 up until this time,” Latty said. “Having said that, in my two careers as a law enforcement officer I have never asked for no-knock on a search warrant.”
He has assisted, however, on serving a no-knock warrant. That request, and case, was the culmination of a long-term drug investigation.
“One of the most interesting I ever saw was 1980 in Gwinnett,” Latty said. “We hit an Outlaw motorcycle gang safehouse, and we had a no-knock warrant that specifically allowed us to drive a heavy car through a gate.”
Most cases are more low key, of course, but do require tailored, sworn testimony to a judge on the necessity of an unannounced entry.
“You can’t just arbitrarily request a no-knock,” Latty said. “There has to be evidence ... specific facts that would lead the judge to agree that you need the no-knock in that case.”
Latty said such a warrant allows a practice that is under heavy scrutiny. The Supreme Court assigns the highest Fourth Amendment protection to residences.
“Years ago, the Supreme Court equated a man’s home with a castle,” Latty said. “Especially appellate courts over the years have given greater sanctity ... and more stringent application of the requirements of probable cause to get into somebody’s residence.”
Because of that emphasis, a judge will want “a lot of good information to formulate that probable cause,” he added.
The scope and limits of no-knock warrants don’t derive from Georgia statute, but case law.
Gov. Nathan Deal said Thursday he is open to discussing whether legislative changes are necessary.
“It would be one of those things that I would be open to if there is sufficient evidence to indicate that it needs to be revisited and more appropriate standards and requirements put in place,” Deal said, adding he would first want to see the results of an investigation into the incident.
And closer scrutiny of no-knock warrants is not a new phenomenon. A bill to impose limits was introduced in 2007 after an elderly Atlanta woman was killed in a 2006 shootout with police during the execution of a no-knock warrant at her home.
That effort failed, largely based on opposition from Georgia sheriffs and prosecutors, and Deal said he would want law enforcement officials involved in any such discussion. He also said it might be something he refers to his Criminal Justice Reform Council for review.
Rep. Lee Hawkins, R-Gainesville, agreed all facets have to be weighed as the incident prompts reaction.
“How many officers’ lives would be put in jeopardy had they knocked at the door?” he posed as an example of a question requiring exploration. “At the same time ... you cannot expose the innocent public to harm in doing these type of no-knocks.
“You’ve got to hear both sides of the issue before making decisions.”
Latty said officer safety enters the equation when there’s evidence a suspect or suspects would use violence or otherwise pose a threat.
“When people are heavily armed; have a history of violence; made specific threats; or have various defense mechanisms around their property, like iron bars on the windows,” he said.
Aggressive drug enforcement first inspired widespread no-knock practice four decades ago, Latty said. “If you’re going to ask for a no-knock, it’s normally a situation where you anticipate the specific destruction of the evidence, and that evidence is usually drugs,” he said.
Latty said it’s essentially up to the individual officer to decide whether to pursue a no-knock. In Hall County, such a decision would likely run up the chain of command based on the danger and resources associated with its application.
“Most likely we would be informed, or consulted, or both, because of the nature of it,” Latty said. “If you’re going to ask for a no-knock clause, you’ve probably got an exceptionally dangerous situation.”
Likely a tactical team would be dispatched to execute the warrant, as was the case in Habersham.
Overwhelmingly standard practice is knock and announce for searches and arrests, he said, although coming through the front door — knock or no — isn’t the only tactic to nab a potentially violent suspect.
“There are all kinds of ruses that are used ... to get (a suspect) out of the house,” he said.
In the end, he said, shielding the young from harm, both physical and psychological, is a foremost concern.
“One of the things that we try to avoid is even frightening a child, if we can avoid it any more than possible,” Latty said. “We go (to) great lengths to be sure that our information is good, that we protect everybody, especially our citizens and our children.”
When things don’t go that way, it’s the most difficult scenario officers will perhaps face in their careers, Latty said. Adding it would be inappropriate for the sheriff’s office to comment specifically on the incident and its ongoing investigation, Latty said he knew the officers involved were devastated.
“I can tell you that probably the people who are suffering the most other than the child and his family are the law enforcement officers involved,” Latty said. “It’s a crushing, horrifying experience to be involved in something that goes wrong.”
“We have children and grandchildren. Those officers in Habersham County, some of them have kids and grandkids,” he added. “It’s a nightmare scenario to think about inadvertently hurting (a) child. Something they’ll probably never really recover from.”
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Holstein’s design challenged by Bremerton man
Patio politics are taken to the City Council over remodel of a new coffee shop in downtown Hood River
A Bremerton, Wash., man believes that he is championing the rights of Hood River citizens in his quest to stop “piecemeal permitting” within the city limits.
Paul Scheyer has accused the City Council of acting as a “hanging judge and jury” during his appeal hearing on Monday. Scheyer lost his protest against the Planning Commission’s approval of Holstein’s Coffee Company’s new enterprise at the corner of Seventh and Oak streets.
“He (Scheyer) certainly has the right to make sure the city is doing what the city should do, but it appears that he challenges everything and certainly drives up the costs for everyone involved,” said Tony Motschenbacher, attorney for Holstein’s.
For the second time within a year, Scheyer could take his case against a downtown development before the state Land Use Board of Appeals. Last fall he lost another fight to block the opening of the Hood River Bed and Breakfast at 918 Oak St. However, that victory was bittersweet for co-owner/manager Jane Nichols who was forced to pay $8,000 in attorney fees.
“There wasn’t anything that I was proposing that was going to be a detriment to the neighborhood, but I’m still paying off the legal bills and I just don’t understand,” said Nichols.
Scheyer, who also routinely takes on authorities in his hometown, said he is simply trying to ensure that the public process is not circumvented by government agencies.
“Anyone who gets in the way of any of our rights is an enemy, I don’t like the ‘good old boy’ business, I take offense, you’ve got to treat everyone the same and if you don’t like the rules, you change the rules, you just don’t look the other way,” he said.
Scheyer said he is not finished with his challenge against the bed and breakfast. He said the business is housing overnight guests without a proper building permit — an allegation that both the city and Nichols deny. In fact, Nichols said she has gone beyond the requirements for a two-bedroom facility by volunteering for a safety inspection and attending a health and safety class.
Scheyer is also scrutinizing local entrepreneur Maui Meyer’s plans to build an upscale restaurant and retail outlet at First and Oak streets, next to the existing Holstein’s facility. With all three applications, Scheyer has accused the city of procedural violations in its permitting process. He has now also included the City Council in that complaint, claiming that his “due process” rights were flouted during the June 23 hearing.
“They don’t even have a clue about how to run a fair hearing and that’s an even bigger issue than the appeal itself,” he said.
Scheyer said the city refused to grant his request for a continuance of the proceedings — and then restricted the amount of time that he and his daughter, Julie Furnanz of Portland, were allowed to speak. Although neither Scheyer or Furnanz reside in Hood River, he owns a boat house on the waterfront and she is the owner of a local apartment complex and a house. Cascadia Apartments are located just north of the former Church of Scientology building purchased by Holstein’s for office space and a new coffee shop.
Mayor Paul Cummings expressed surprise about his new title as a “hanging judge.” He said that Scheyer’s remark seemed unfounded since he had granted the appellant twice the amount of speaking time given to staff — and had even allowed him to raise arguments about issues that were not under consideration.
“I’ve been called a lot of names in my life but this is the first time I’ve been called a hanging judge and I’m at a loss to understand exactly where that is coming from,” Cummings said.
City attorney Alexandra Sosknowski told the council on Monday that, in her legal opinion, Scheyer’s request to stop the proceedings was not appropriate. She said the appeal hearing required that a decision be based only on the facts already in the record. She said the reasoning behind a continuance was to allow time for new evidence in a case to be gathered and presented.
Scheyer said in all three cases the city has not followed the letter of the law when issuing permits. For example, he said Holstein’s owners Cory Bernard and Brian Graves are being granted “illegal” use of the patio for their coffee shop because their landscaping plan is incomplete.
Cindy Walbridge, city planning director, said that 750 square feet of the property, which includes an existing building and patio, has been reserved for landscaping. She said Bernard and Graves have already been briefed about the screening that will be expected once the interior remodeling is completed.
“They knew what the conditions of approval would be from the moment they walked through the door,” Walbridge said.
Motschenbacher said his clients have every intent of designing a project that complements the city.
“We are well aware of our landscaping requirements but it’s the last thing you do, you can’t put in a bed of roses only to have construction workers walk on them,” he said.
Scheyer said if landscaping details are not drawn out before building starts, it closes down an opportunity for the public to comment on the plan.
“The public should be able to look at the landscaping plan, otherwise it’s done someplace in the back room,” he said.
Meanwhile, Bernard and Graves are gearing up for the next potential legal challenge and remain optimistic about the success of their new venture.
“We have been delayed but we are very excited about the project and we plan to be in full compliance about our landscaping, meet all the requirements of the city, and move forward soon,” Bernard said.
War marshals uneasy feelings
Coffee spot breaks new ‘Ground’
Surprise offer puts new twist on waterfront
Students raise more than $11,000 in annual Work Day
Stonehedge Gardens offers a getaway without leaving town
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Dispute over land title may halt sale of hotel
THE sale of the Portmarnock Hotel and Golf links by the NAMA appointed receiver could be threatened by a dispute of the title to a portion of the land, according to a Labour local election candidate.
http://www.independent.ie/regionals/fingalindependent/news/dispute-over-land-title-may-halt-sale-of-hotel-30226644.html
http://www.independent.ie/regionals/fingalindependent/news/article30226643.ece/6f792/AUTOCROP/h342/NWS_20140429_New_016_31193509_I1.JPG
Brian McDonagh
Brian McDonagh, a Labour candidate for the Howth/Malahide Ward, said: 'It was a great surprise to locals that the recent advertisement for the sale of Portmarnock Golf Links and Hotel that a large parcel of what the community had assumed was public land was included by the receiver in the sale.
'The land in question is a public road and a green space that has been open to the public as long as I can remember.'Mr. McDonagh added: 'The 1994 planning application for the Golf Links (retention) went to An Bord Pleanála and granted in 1995.
'One of the leading conditions by ABP states: "Arrangements for the dedication of the lands to the west of Golf Links Road (offered by the applicant to the planning authority in the application) for public open space and recreational purposes shall be completed prior to the commencement of development.'''According to Mr. McDonagh, in January of 2000, in response to a motion from the council it was noted at the meeting that 'both a transfer of land with I.M.G., Ltd., and acquisition by way of Deed of Dedication from the same company are at an advanced stage, but no title transfer to the council has yet taken place'.
Mr. McDonagh said: 'Having contacted the estate agent for the receiver and looking at records the title doesn't seem to have changed hands.'I would like to ask why this dedication of the lands does not appear to have been legally completed after 20 years? The lands have been fully maintained by Fingal County Council over all of this period.
'From the proposed current sale of the Portmarnock Golf Links, it appears that the receiver is laying claim to this protected area adjacent to Baldoyle Estuary.'He added: 'Naturally enough the receiver is looking to maximise full value for the tax payer by including this stretch.
'I would however, call on the receiver and NAMA to postpone the sale pending transfer, the last thing we need is for a purchase to go ahead and then for the State, through the receiver and NAMA, to be involved in a protracted legal dispute over title due to historic failures of the council and previous owners.'The Labour candidate concluded: 'In reality, the land in question is of no use to anyone but the public other than as a bargaining chip for further concessions from planners.
'So let's hope the receiver and NAMA do the right thing, that they recognise and correct the problem and complete the transfer as per previous planning decisions.'
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Litigation: Considerations for due-process challenges to classwide statutory damages awards
Many courts have recognized that classwide awards of statutory damages may run afoul of the due-process clause
By Matthew Brown, Christopher Durbin, Candace JackmanNovember 29, 2012
After sending emails to more than 50 million subscribers, a website faced $25 billion in potential liability under Washington’s Commercial Electronic Mail Act, which imposes statutory damages of up to $500 per violation. Similarly, an entertainment company was sued for more than $100 million for allegedly disclosing subscribers’ personal information in violation of the Cable Communications Policy Act, which provides minimum damages of up to $1,000 per plaintiff. As these examples illustrate, the combination of statutory damages and the class action device can transform even technical statutory violations into high-stakes—and even “potentially annihilating”—litigation.
As numerous courts have now recognized, classwide awards of statutory damages may run afoul of the due-process clause. For a defendant in a class action considering a due-process challenge, there are two key considerations: the applicable legal standard and procedural timing.
In 1996, the U.S. Supreme Court held in BMW v. Gore that due process forbids “grossly excessive” punitive damages awards. And in the 2003 case State Farm Mut. Auto Ins. Co. v Campbell, the high court held that “few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process.”. Although the Supreme Court has not yet decided, some courts have assumed that Gore demands a similar relationship between a plaintiff’s actual harm and any award of statutory damages (see the 2nd Circuit’s 2003 opinion in Parker v. Time Warner Entm’t Co.). Other courts have distinguished Gore, instead applying St. Louis, Iron Mountain & Southern Railway Co. v. Williams, which recognized that a statutory damages award may violate due process if it is “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.” Although these standards could well converge in the future, a defendant who mounts a due-process challenge should consider addressing both lines of cases.
Procedural timing
A second consideration is procedural timing. At the pleadings stage, courts have largely concluded that a due-process challenge to classwide statutory damages is premature (see the 2008 Northern District of Illinois case Centerline Equip. Corp. v. Banner Pers. Serv.). However, at class certification, many courts have refused to certify statutory damages claims under Rule 23(b)(3)’s “superiority” requirement, citing “the disproportionality of a damage award that has little relation to the harm actually suffered by the class, and on the due process concerns attended upon such an impact” (see the 2007 Central District of California case Seig v. Yard House Rancho Cucamonga, LLC).
Other courts have rejected this approach, reasoning, for example, that a due-process challenge is not ripe until after entry of a judgment (see the 2010 Western District of Missouri case Hammer v. JP’s Sw. Foods, LLC), or that the “proportionality of the potential liability to actual harm” is “not an appropriate reason to deny class certification under Rule 23(b)(3)” (see the 9th Circuit’s 2010 decision in Bateman v. Am. Multi-Cinema, Inc.). But even these rulings leave open the possibility that due process could preclude certification of a class that threatens “ruinous liability” or contravenes legislative intent. Still others suggest that, on the right factual record, due process could warrant decertification of a class (see the Middle District of Florida’s March opinion in Bush v. Calloway Consol. Group River City, Inc.).
Following class certification, defendants have attempted to oppose classwide statutory damages on summary judgment (see the Western District of Oklahoma’s 2010 opinion in In re Farmers Ins. Co.) and in framing jury instructions (see the 2008 District of Oregon case Ashby v. Farmers Ins. Co.). Although not right for every case, such an approach could succeed in the appropriate circumstances (e.g., on a plaintiff’s motion for summary judgment on damages and liability). Finally, although results have been mixed, most courts agree that due process is appropriately addressed following entry of a verdict. Compare the 2001 Western District of Texas case Texas v. Am. BlastFax, Inc., in which the court reduced a $2.34 billion statutory damages award to $459,375, finding the jury’s award “inequitable and unreasonable”, with the 2007 6th Circuit case Zomba Enters. v. Panorama Records, Inc., in which the court upheld a statutory damages award 44 times greater than actual damages in single-plaintiff litigation.
The upshot is that, in this evolving area of law, defendants in appropriate cases should look for opportunities throughout the litigation to oppose classwide statutory damages based on due process. In addition to the obvious benefit of ultimately prevailing on this argument in the district court or on appeal, the possibility of a favorable ruling can also play a valuable role in achieving a settlement on terms favorable to the defense. « Prev
Matthew D. Brown is a partner in Cooley LLP’s Litigation Department in San Francisco and a member of the firm’s Privacy, Commercial Class Action Litigation,...
Christopher Durbin
Christopher B. Durbin is a partner in Cooley LLP’s Litigation Department in Seattle and a member of the firm’s Commercial Class Action Litigation, Securities Litigation,...
Candace Jackman
Candace Jackman is an associate at Cooley LLP. Her practice focuses on complex commercial disputes, including user content and privacy litigation.
Theranos Faces Rare Pre-IPO Securities Class Action
Litigation 3662 Class Action 952 Texas 323 Illinois 283 U.S. Supreme Court 247 Florida 246 Missouri 93 Oregon 85 Join the Conversation
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Double Murder Suspect Appears in Court Posted: Tue 5:14 PM, May 13, 2008
| Updated: Wed 7:40 AM, May 14, 2008 The Chester man suspected of killing his former girlfriend and her boyfriends this past weekend was formally charged with two-counts of murder Tuesday in Plumas County Superior Court.
Shackled at the waist and ankles, Carrillo appeared before a judge in Quincy. His court-appointed attorney asked for and was granted a continuance of the arraignment to June 4th when Carillo is expected to enter a plea.
According to complaint filed by the Plumas County Sheriff's office, investigators say Carillo, sometime between late Saturday and early Sunday, stabbed to death Jennifer Carrigan and Steven Daniel Furtado, both 18. They were found dead Sunday by Carrigan's mother at a house in Chester.
The judge Tuesday refused Carrillo's request for $1 million bail. Because this is a double murder, Carrillo does face the possibility of the death penalty, according to the Plumas County District Attorney's office.
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Among Ourselves
Before working at The Hague, Tim Resch, a Portland attorney who specializes in employment law and commercial litigation, had done some criminal work for Multnomah County’s special prosecutor program. Still, nothing in his professional or personal background could steel him for the nightmarish stories war victims shared as he gathered facts to prosecute those responsible for the genocide in Bosnia and Herzegovina.
“You read witness statements from women who were in camps and were raped night after night… or from families in a village where, all of the sudden, one day the Bosnian Serb soldiers come in, separate the men and women, torch the houses and tell the women to leave. The men end up in a prison camp or are never seen again,” Resch says. “Nothing can prepare you for that, and I’m not sure you ever get used to it.”
And yet Resch, a partner at Samuels, Yoelin, Kantor, Seymour & Spinrad, is in his second stint as a volunteer for the prosecution team at The Hague’s international war crimes tribunal. He is among a diverse array of Oregonians applying their professional knowledge and personal experience to help others in need around the globe. From doctors and dentists to architects and engineers, the state is home to a mix of professionals committed to bettering the lives of those in impoverished nations and regions that have been decimated by natural — and manmade — disasters.
It is a network of international expertise that has grown over decades. In 1977, Dr. David Kinzie founded the Torture Treatment Center of Oregon, the nation’s oldest treatment center for victims of torture and severe war trauma. Located on the Oregon Health & Science University campus in Southwest Portland, the center initially treated mostly victims of the Indochina Wars. Today, it serves survivors from Afghanistan, Bosnia, Central and South America, Ethiopia, Iran, Iraq, Somalia, Sudan and other parts of Africa. Overall, the center treats immigrants from 20 different language groups.
Horrific tales of torture also spurred Dan O’Neill to action during the 1970s. He raised $1 million to help refugees fleeing the “killing fields” of Cambodia and, in 1979, launched the international human rights powerhouse now known as Mercy Corps. Since then, the Portland-based nonprofit has provided more than $1.5 billion in humanitarian aid and development funds to people in 106 nations.
The Peace Corps has long ranked Oregon high on its list of fertile spots for volunteer recruitment (the state currently ranks No. 3). And, according to the U.S. State Department, Oregon is among the top 20 states refugees select when seeking to rebuild their lives in America.
Jeff Bachman, an environmental attorney for the state’s Department of Environmental Quality and board chair for Amnesty International USA, credits the number of those dedicated to international justice with the state’s concentration of similar ethics and ideals. “There are people who are drawn to live here who do have an interest in international affairs and a passion for social justice,” he says.
While Oregon’s rich legacy of international human rights involvement spans decades, it has grown exponentially since Sept. 11, 2001. Amid allegations of detainee abuse at the prison camp at Guantanamo Bay and its proposed closure, and America’s current examination of its definition of “torture,” an increasing number of attorneys, law professors and their students are pursuing opportunities to preserve and protect international justice.
Shelter in the Storm
Kinzie shares a common bond with the torture victims who come from all over the world to seek his treatment at the Torture Treatment Center of Oregon. A volunteer physician for civilians during the Vietnam War, Kinzie suffered from post-traumatic stress disorder (PTSD) after seeing people who were dead or severely wounded day after day.
“We were in a small town with a hospital and we saw the war firsthand,” he says. “We saw a lot of wounds, and we saw many people die from diseases and we couldn’t treat them. We were at times in physical danger. The main effects were anxiety, nightmares and irritability that, for me, occurred for several years afterwards.”
As he alternated between Vietnam and Malaysia during the late ’60s, Kinzie grew more intrigued by the concept of cross-cultural psychiatry. After he completed his psychiatry residency, he started a clinic for refugees in Malaysia and began treating PTSD victims. It wasn’t until 1980 that the American Psychiatry Association gave a name to the mental health disorder Kinzie had been treating for years.
“As we got more and more refugees from around the world, we realized how many had been tortured,” Kinzie says. “When you’ve been traumatized as a human being, you’re going to have very common symptoms. PTSD and depression are the most common. Some people experience psychosis. Marital discord and domestic abuse occur frequently. And many people develop medical problems like hypertension and diabetes.”
While a few symptoms can be minimized rather quickly, others take a lifetime to address. Some of the center’s patients have been treated for more than 25 years, says Kinzie, who also serves as a psychiatry professor at OHSU.
“We can end the sleep disorders and nightmares pretty fast and some depressive symptoms. But we can’t get rid of the past and bring back family members or countries,” he says. “The biggest difficulty is they remain vulnerable. You can have reduced symptoms that under stress — like losing immigration status, having a car accident or losing a family member — will cause the symptoms to come back. There’s an up-and-down course for a long time.”
And, as conflicts rage in the Middle East, Darfur and other hotspots around the world, the influx of traumatized people seeking treatment most likely will continue as well.
“It doesn’t seem like the wars are going to slow down,”
Kinzie says.
The Facts of Torture
While Kinzie helps torture and war trauma victims try to piece together some normal semblance of life, across town, at Reed College, political science Professor Darius Rejali explores the technology of torture. Since the 1970s, the Iranian-born professor has studied the causes, consequences and meaning of torture. He is now an internationally renowned expert on government torture and interrogation.
Rejali’s most recent book, Torture and Democracy, examines how democracies use torture in the 20th century. According to his website, “As democracy, human rights, and the free press blossomed after World War II, so did the market for ‘clean’ torture techniques that leave no evidentiary scars, such as the use of drugs, stress positions, and waterboarding. Rejali reveals the most controversial Western intelligence-gathering techniques, explains their origins, and questions if their use actually hinders the torturer’s ability to gather credible intelligence.”
The book, which won the 2007 Human Rights Book of the Year Award from the American Political Science Association, took Rejali 13 years to write. “I was ready to publish it after 10 years, but it was 2001 and I realized there was a torture crisis coming. For me, all the flags were up by 2002.”
He predicts that this torture crisis will likely continue, with private interrogation companies playing a larger role as governments seek to distance themselves from such practices. Another aspect to the crisis is that the soldiers serving in the Middle East will one day return home and find work as police officers, private security and other positions of authority, Rejali notes, adding some of them may incorporate less-than-desirable techniques on the job.
“Torture isn’t policy, it’s practice,” he says. “There is about a 20-year shadow where it reappears back in society.”
It’s an issue of growing interest to students, many of whom initially want to explore the moral implications of torture but come to focus on Rajali’s current emphasis: the forensics of torture.
“I try to get a lot of the mystery out of it, and the facts of torture are extremely important for legal cases and the prosecution of those who commit torture,” he says.
Putting the Facts to Work
Perhaps no one knows that better than the Oregon lawyers who travel to The Hague to serve on the international war crimes tribunal. Resch made his first journey there in 2000 when what was supposed to be a brief assignment turned into a four-year endeavor to prosecute Bosnian Serb leaders accused of war crimes.
Resch returned to The Hague last January to prosecute Serbian war leader Radovan Karadzic, who is charged with a siege and terror campaign in Sarajevo and the mass genocide of about 7,000 Bosnian Muslims during the Srebrenica Massacre in 1995. The case against Karadzic involves more than 500 witnesses and 2,500 exhibits.
“Inasmuch as I can make a contribution to international justice, I feel I have a responsibility because I have some special knowledge and I wanted to come back and contribute,” Resch says. “I can only be here for six months, but it was important for me to come back and do what I can to help the trial team.”
Another element of his work involves identifying witnesses in leadership positions who can confirm that the judicial system became an arm of the state’s policy of ethnic cleansing. One gentleman in particular has been honest in sharing how judges failed by letting soldiers go back to their units instead of prosecuting them, Resch says.
“He accepted responsibility that he had failed and was able to give us some pretty powerful testimony about the political and military involvement,” he says. “He was a courageous individual, and that sort of experience is rewarding.”
Another Oregon attorney has witnessed heroism beyond what she imagined humanely possible while teaching English to Tibetans. She asked to remain anonymous but wanted to share her experiences from the handful of trips she has made to China since the 1980s.
Previously a Portland litigator, she first traveled to China in 1985 to teach law. Her last visit was from November 2007 through February 2008, when she witnessed a markedly different China than the one she first encountered during the ’80s. Amid turbulent protests by Tibetans and the impending 20th anniversary of the Tiananmen Square protests, Chinese officials were much less welcoming to outsiders.
Given the turmoil in China, she changed her plans for another visit in late 2008 and traveled to India to teach English instead. Many of her students were Tibetans who had fled China after years of imprisonment and torture. She says a number of them were from nomadic or farming families, and several were monks and nuns. For the most part they were imprisoned during the 1990s, though one student was released as recently as 2005.
“Without exception, the activities they engaged in that landed them in prison all had to do with freedom of religion and freedom of expression issues,” she says, noting that to carry the Tibetan flag is one of the greatest infractions. “There are three phrases that also will land you in prison: ‘Free Tibet,’ ‘China out of Tibet’ or ‘Long live His Holiness the Dalai Lama.’”
She interviewed several students in January, and they recounted the months they spent in detention centers after their arrests.
“While in detention, no one was allowed to see or contact family or friends or a lawyer. In detention they were subjected to daily interrogations and beatings. The torture there was worse than in the prisons following sentencing,” she says. “Not one of them was represented by a lawyer or by a legal representative at any stage.”
A group of Chinese lawyers who sought to represent Tibetans charged in the 2008 uprisings were denied the right to do so and were subjected to threats of discipline, disbarment and even prosecution for state security violations, she adds.
While she hopes to return to China soon, and someday visit Tibet, she worries about the future of the China she first experienced during the 1980s. Even more, she fears for the Tibetan students she befriended and younger generations of Tibetans fighting to make their voices heard.
Justice for All?
Another contingent of Oregon lawyers who volunteered their expertise found themselves in the unenviable position of evaluating just how far their own country’s commitment to international justice goes during wartime.
After the U.S. Congress passed legislation designed to strip Guantanamo detainees of their right to file habeas corpus petitions contesting their imprisonment, the Center for Constitutional Rights and the American College of Trial Lawyers called upon private practice attorneys to volunteer their time to represent the detainees. Several Portland lawyers answered the call.
They included Sam Kauffman, of counsel with Garvey Schubert Barer; Kauffman’s colleague, Bob Weaver; Jan Kitchel with Schwabe, Williamson & Wyatt; and Tom Johnson with Perkins Coie. A team from the Oregon Federal Defender office, including its head, Steven Wax, and attorney and investigator William Teesdale, also took on several cases.
Each undertook the effort at considerable personal and professional expense. During a 2007 interview, Weaver estimated he and Kauffman spent about 1,000 hours — worth an estimated $350,000 in legal fees — and $100,000 in travel and other costs, from when they began representing a pair of detainees in fall 2004 to 2007.
Johnson traveled to Guantanamo four times to meet with his client, Ihlkham Battayav, and to Kazakhstan to investigate facts that supported Battayav’s innocence. Johnson volunteered about 450 hours on the case in 2006, and spent at least $10,000 each time he traveled to Guantanamo.
As the issue bounced back and forth between the U.S. government and the Supreme Court, the Oregon lawyers watched helplessly as their clients sank into despair and, in some cases, insanity. Though Supreme Court rulings favored the detainees, there still was no end in sight to their confinement.
“On the one hand, I’m proud of my country because it permits me as a federal employee to fight this fight,” Wax said during a 2007 interview with the Bulletin. “On the other hand, I’m deeply disturbed by my country because of what it’s doing to the human beings it has locked up now for more than five years and the continual distortion of the truth it puts out. I’m disturbed by the legal positions put out by my government that run contrary to 800 years of Anglo-American legal and political thought.”
Debate Initiates Evolution
As the eighth anniversary of 9/11 neared, U.S. politicians and legal authorities wrestled with what to do with detainees captured in the wake of the terror attacks. About 230 detainees still remain at Guantanamo, and President Barack Obama has said that while Guantanamo should be shut down, a small number of those who remain should be imprisoned indefinitely because they are too dangerous to release or prosecute.
If nothing else, Gitmo is the indelible image shadowing the national debate about U.S. policies on the treatment — and torture — of prisoners captured during wartime. The debate has generated significant interest among Oregon legal professionals, who for years now have been drawn to public forums on the issue hosted by the Oregon State Bar’s Civil Rights Section.
Dennis Steinman, a civil rights attorney with Portland’s Kell, Alterman & Runstein and former Civil Rights Section chair, recalls a forum on the Patriot Act a few years back that filled the Oregon Convention Center to standing-room-only capacity. The keynote speaker was Viet Dinh, former U.S. Assistant Attorney General and the act’s primary author. Other speakers included Rep. Earl Blumenauer, former U.S. Attorney Karin Immergut, representatives from the U.S. Department of Homeland Security, several defense lawyers and members of the American Civil
Liberties Union.
“It was not only well attended by the legal community but also by the public in general, so the interest in matters of civil liberties since 9/11 was dramatic,” Steinman says. “This was a program that was occurring while the Department of Justice was investigating Brandon Mayfield. There was significant interest in the changes in civil liberties and how it was affecting us on a day-to-day basis.”
Katelyn Oldham, a Portland sole practitioner and immediate past chair of the OSB Civil Rights Section, says the topic of international justice continues to draw interest. OHSU’s Dr. Kinsey was among the speakers for a forum last November that addressed the implications of torture on democratic societies.
“I would say there has always been an interest in this issue. What has changed is in response to the press that came out about what went on at Guantanamo and the secret prisons we’ve heard about,” Oldham says. “It’s widely recognized that the Bush administration pushed executive privilege to the utmost and, because of that, there were civil rights violations. It’s generated more outrage and really put a face to it, especially when we learned that American citizens were involved.
“Now there is a lot of curiosity about what the [Obama] administration will do and the questions surrounding it, like whether Guantanamo will be shut down and what we will do with the people being held there,” she adds.
Willamette University Professor Jim Nafziger, who teaches international law, comparative law, international dispute resolution and immigration law, says the expanding web of issues related
to international justice is igniting interest among law students as well.
“Efforts to promote and protect human rights internationally have already progressed through three phases: the definition and elaboration of rights, gradual governmental accession to those rights, and the construction of international institutions to implement and to supervise compliance with those rights,” says Nafziger. “We are now essentially in a fourth phase of a focus on actual implementation and compliance, which is proceeding, as one might expect of the international system, in fits and starts.”
Some examples include the work of the United Nations and its specialized agencies regarding not only political and civil rights but also economic, social and cultural rights; the integration of international human rights considerations into corporate law, extradition law, environmental law, criminal law and other basic disciplines; and the growth of new institutions, ranging from the Truth and Reconciliation Commission in South Africa to the European Court of Human Rights and the Inter-American Commission and Inter-American Court of Human Rights.
“Sadly, the United States is not a party to the latter institutions, nor to many international human rights treaties, including, for example, that on the Rights of the Child, to which only one other country, Somalia, is also not a party,” Nafziger says.
Noting that the challenges to the discipline in this era of gradual implementation are immense, Nafziger outlined a few:
The question of cultural relativity and whether human rights really are global, given the disparity of cultural variations.
The status of the group rights of ethnic communities, indigenous populations such as Native Americans, and other minorities.
The status of internally displaced persons, such as those who flee from armed conflict and natural disasters but, because they cannot leave their own national territories, do not enjoy the full protection of international law.
The question of whether war crimes prosecutions, as justice-administering institutions, serve or compromise negotiations for peace.
Another challenge, according to Nafziger, is the problem of how to balance economic and political rights. For example, China believes that human rights begin at breakfast and, therefore, economic rights should come first in the country’s modernization efforts. But this priority has met with great skepticism from Western media and people who question whether you can really separate economic from political rights, he notes.
“At a more theoretical level are questions about the relationship between human rights law and humanitarian law — that is, the law applicable in times of armed conflict — and between human rights law and international criminal justice.
“These are big issues that will shape the evolving curriculum in law schools,” he adds. “But we are making progress in promoting and protecting human rights globally. Years ago, while I was serving as chair of the Human Rights Committee of the International Law Association (American Branch), a huge issue was cultural relativity. Today, however, though it is still an issue, the universality of basic human rights norms on such matters as gender and religious issues is much more broadly accepted.”
While some improvements have been made over the years, many with a passion for international justice continue to keep a wary watch on future events and are concerned about what may lie ahead.
“I know that as practitioners we need to be more aware of the general policies of what’s happened with our country since 9/11 and how it’s impacting the employment arena and all sorts of other aspects of people’s day-to-day lives,” Steinman says.
“I absolutely think the public has an intense need to know, and a right to know, about the kind of stuff that has been going on,” he adds. “I do believe that policies have changed and hopefully some of the stuff that went on before under the Torture Memo have been stopped and we can move on from that.”
Melody Finnemore is a Portland-area freelance writer and a frequent contributor to the Bulletin
© 2009 Melody Finnemore
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Legal/Regulatory >
Lawsuit for Overseas Entrapment to be Heard in U.S.
By Rebecca Robledo
An entrapment lawsuit against Jamaican resort giant Sandals will be heard in the United States. The decision raises questions about the role that the Virginia Graeme Baker Act may — or may not — play in the case.
In December 2010, 33-year-old John Van Hoy Jr. drowned after becoming entrapped on a spa drain at the Sandals Royal Bahamian resort in Nassau. The following May, his relatives filed suit in Miami, naming Sandals and its marketing representative, Unique Vacations; pool and spa manufacturers A.O. Smith Corp., Hayward Industries, Pentair Water Pool and Spa (now called Pentair Aquatic Systems) and its subsidiary, Sta-Rite; and distributors SCP and Hospitality Purveyors.
The spa had a single-drain system, unsafe drain covers and no safety vacuum release system or other form of entrapment protection, the family claimed. They further alleged that the drain cover was not properly fastened, the water velocity exceeded Florida’s legal limit, and the lack of a shut-off switch and inability to access the pump room made it impossible to disable the equipment quickly enough.
The defendants filed a motion to dismiss the case for forum non conveniens, or inconvenient venue. They said the United States is not the proper place for a lawsuit, given the accident occurred in the Bahamas. Van Hoy’s family countered that they should be able to sue in the United States because the Jamaican resort firm does extensive business here, and the other defendants are U.S.-based.
The court stated the defendants did not sufficiently prove that conducting the case in the United States would cause an injustice or impose an unreasonable burden on their ability to include their witnesses or provide evidence, with the exception of one charge.
Judge Patricia A. Seitz added that the burden of proof here is heaviest for defendants. “[The] presumption for a plaintiff’s choice of forum is strongest when the plaintiff is a United States citizen,” she wrote.
One of the defendants’ attorneys said the decision should not have much bearing on the final outcome. “It surely has nothing to do with the merits of the case at all,” said David B. Newman, a partner in New York-based Day Pitney, LLP, which represents Hospitality Purveyors and Unique Vacations. “… I look at it more in terms of being administrative as opposed to substantive, and I don’t think the court is saying anything at all about the ultimate merits or where the court would come out on any other issue.”
The lawsuit cites the Virginia Graeme Baker Pool and Spa Safety Act, the federal bill mandating certain entrapment-protection measures. While it isn’t yet known if the defendants will be held to the American law, the plaintiffs’ attorney said, at the very least, it can be cited as an example of best practices.
“All that statute really represents is the collective minimal safety standards that everyone believes in the pool industry are minimal safety requirements,” said Keith Brais, principal of Miami-based Brais and Brais. “Even if the Virginia Graeme Baker Act ultimately doesn’t apply in a statutory sense, it certainly can be looked at as a minimal safety standard industrywide.”
Brais said his clients aren’t accusing the manufacturers and distributors of doing anything wrong outside the United States. In the discovery phase, he said, he plans to investigate whether the suction outlet covers were exported after Dec. 18, 2008 — the date when it became illegal for American manufacturers to sell non-VGB-compliant covers.
“So we’re not saying that the VGBA applies to conduct outside the United States, at least not in this complaint,” Brais explained.
He sees the decision having broad impact on cases involving American citizens traveling abroad. “Clearly, the first implication is that plaintiffs now, in this particular situation, are on a much stronger footing to ensure that they get their day in court in a U.S. court.”
Newman doesn’t believe the decision will carry such gravity, partly because it comes from a district court. “I think it will be another case cited by plaintiffs who are up against a motion to dismiss based on forum non conveniens,” he said. “I don’t think it will mean anything more than that.” About the Author
Rebecca Robledo
Rebecca Robledo is an award-winning trade journalist with more than 25 years experience reporting on and editing content for the pool, spa and aquatics industries. She specializes in technical, complex or detail-oriented subject matter with an emphasis in design and construction, as well as legal and regulatory issues. For this coverage, she has received numerous awards, including four Jesse H. Neal Awards, considered by many to be the “Pulitzer Prize of Trade Journalism.”
Drain Entrapment
VGB
Miami-Fort Lauderdale-Pompano Beach, FL
The Fed says Visa Violates Debit Card Law PoolCorp Antitrust Lawsuit: Case Closed -- For Good Texas Judge Blocks Department of Labor's Overtime Regulations New Jersey Sees Pool Licensing Bill House Votes to Delay Department of Labor Overtime Pay Regulations Bill Proposes Removal of Swipe Fee Caps Join the Discussion
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2016-50/3656/en_head.json.gz/17299
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You are here: Parliament home page > Parliamentary business > Publications and Records > Hansard > Commons Debates > Public Bill Committee Debates > Standing Committee on Bills
Proceeds of Crime Bill
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Mr. Davidson: When the Minister responds, will he clarify whether the appointed person will be instructed to accept that mistakes will inevitably be made? Mistakes, or seizures without successful results, should not be a cause for rebuke. Will the appointed person be guided to accept that it is far betterif necessaryfor a considerable number of innocent people to be inconvenienced by searches either of their premises or their persons, rather than for those who consistently trade in death-dealing drugs to be allowed to go free?
As a Parliament, we should accept that even if most searches prove unsuccessful, the police should not be unnecessarily fettered. The nearest parallel is the current regular searches of young people in my area for knives. Most such searches are unsuccessful, but the knowledge that they are carried out regularly has had a major effect in reducing the percentage of youngsters who carry knives. The prospect of a search undoubtedly deters many youngsters from carrying knives, and the exercise of powers being unnecessarily criticised by an independent person would not be helpful. I hope that my hon. Friend can accept that.
Can my hon. Friend also assure me that the appointed person need not be a lawyer?
Mr. Carmichael: Although it is, of course, preferable that he should.
There is some force in the arguments of the hon. Members for Spelthorne and for Surrey Heath, in relation both to the appointment of the personit would be of benefit if more details were set out in the Billand to the force behind the report and its Column Number: 824
recommendations when it is laid before Parliament. Under the Bill, the appointed person can make any recommendation that he wants, but that is as far as it goes. Such matters simply disappear into the ether at that point. I would prefer some reference to be made in the clause to the idea that if a recommendation were not followed, a Minister should be obliged to give a reason for that refusal. That is not an unreasonable burden to place on a Minister. I can think of any number of reports containing cogent and well argued cases from the Law Commission and other bodies that land on Ministers' desks and stay there gathering dust. If the appointed person is to have power, that would be a fairly sensible way in which to ensure that it is exercised.
I observe in passing that the clause is not well drafted. For example, it states:
''The report must give his opinion''.
That is meaningless. Presumably, the report must give the opinion of the appointed person. That may sound picky, but the present drafting is inelegant.
Mr. Ainsworth: Until the hon. Gentleman's last point, he was making a good case for the appointed person to be a lawyerbut his last point seemed to undermine it.
The powers are potentially intrusive and Parliament must satisfy itself that they will be used appropriately. The purpose of this procedure is to ensure that the powers and the manner in which they are used are subject to public scrutiny. We do not intend the individual to report on every caseI hope that I have not misled the Committee in that respect. He will require reports to be made to him when appropriate, and those reports will cover such issues as the reasons to suspect that cash was the proceeds of crime or was intended to be used for crime, in addition to the justification for conducting a search without prior judicial authority. We do not intend the individual's subsequent report to go into the details of every case, which was part of the point made by my hon. Friend the Member for Glasgow, Pollok (Mr. Davidson). The individual should report to Parliament giving his opinions of the way in which the powers have been used, to allow us to check on an annual basis that they are not being abused, and to take action if they are.
As I said in response to the hon. Member for Spelthorne, the appointed person will be independent and assigned by Ministers to oversee the exercise of the search powers. There will be a separate individual for Scotland, who will be appointed by Scottish Ministers. The terms and conditions of those individuals are yet to be decided by the appointed Minister. We envisage that the post will be part-time, and it may be suitable for a person such as a retired judge.
My hon. Friend the Member for Glasgow, Pollok is probably right about what should and should not be included. However, if the appointed person is to be independent, it will be for him or her to decide how to structure the report. We do not want Ministers to tell the person what they will and will not report. That Column Number: 825
person will examine how the powers are being used and will report on that, and on the trends of use, and will make recommendations if he or she has worries.
Mr. Wilshire: I can understand why the Minister has not yet undertaken detailed consideration of the terms and conditions of the independent person. Is he able and willing to consider the matter before Report? That is important because the process is a vital safeguard against the abuse of a major power. Will he give us further information on Report?
Mr. Ainsworth: As I said, this is as far as we have gone at the moment. We want to move on as quickly as possible and give all hon. Members as much information as we can. However, I have mentioned the type of person that we are considering. We do not want to fetter the report. We want the appointed person to examine the way in which the powers will be used, to give his or her opinions and to make recommendations. We want to ensure that the recommendations are public. The hon. Member for Orkney and Shetland expressed concern that the process ends there and there is no requirement to act on the recommendationsbut if a report is made and its recommendations are ignored, no Minister of the day will get away without commenting on those recommendations and giving reasons why they are rejected, or not acted upon. That is the nature of our parliamentary procedure, and I do not think that there will be a problem. If the report makes public recommendations, Ministers must respond to them.
Mr. Wilshire: I did not ask whether the Minister would give further thought to the independent person now. I asked whether he would be able to give us more information on Report. I repeat that: will he give us an undertaking to provide more details on Report?
Mr. Ainsworth: If things have moved on, obviously I will. I am also prepared to listen to any suggestions that the hon. Gentleman has about the structure. If he wishes to feed those in, either now or on Report, I will be happy to listen to him. As I have tried to tell him, it is not our intention to be secretive. We do not think that a full-time post is justified, and we require someone with some judicial experience, so the post may be appropriate for a retired judge. If we clarify our thoughts before Report, I will give the hon. Gentleman the benefit of our decisions.
Mr. Wilshire: I am grateful to the Minister for inviting me to make suggestions. One comes to mind immediately: in order to stress the person's independence from the Executive, will the Minister consider making the appointment subject to the approval of Parliament?
Mr. Ainsworth: No, I will not. We do not intend the person to be an employee of the Government, or anyone who cannot be deemed independent. The person will be someone with a legal and judicial background. The hon. Gentleman's fears are not justified.
Column Number: 826
Mr. Davidson: I am grateful to the Minister for giving way to me on the question of whether the person's independence would be increased if he or she were approved by Parliament. I should think that a Parliamentary vote, with the Whips operating in all parties, is less likely to make the person appear independentunless Government Whips, former Whips and Opposition Whips have decided, as a new year's resolution, to allow Members to make up their own minds. I doubt that they have.
Mr. Ainsworth: My hon. Friend's comments about former Whips are getting very personal, and I shall not rise to the bait.
The scheme that we propose is similar to that currently provided under the Immigration and Asylum Act 1999, in which an appointed person produces an annual report on refusals for entry clearance. That system was first introduced under the Asylum and Immigration Appeals Act 1993. It provided independent scrutiny of the refusals of entry clearance applications presented to Parliament. That is the kind of system that we envisage in this case.
Clause 290, as amended, ordered to stand part of the Bill.
Clause 291
Mr. Grieve: I beg to move amendment No. 453, in page 169, line 26, leave out subsection (6).
The Chairman: With this it will be convenient to take amendment No. 454, in clause 292, page 170, line 4, leave out subsection (6).
Mr. Grieve: In subsection (6) of clause 291, which deals with the code of practice, there is a rather curious reference that also features in the Scottish clause. It says:
''A failure by a customs officer or constable to comply with a provision of the code does not of itself make him liable to criminal or civil proceedings.''
That is followed by subsection (7), which states:
''The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.''
I find the inclusion of subsection (6) mystifying. Clearly, we do not intend to create a specific offence of failure to comply with the code. If we were to do that, we would have to pass specific legislation. I ask myself why subsection (6) is included. As subsection (7) is also present, it is apparent that a person could bring a civil action for accepted and existing torts, and include within that a claim, based on evidence, of failure to comply with the code. Similarly, it might be possible to bring a criminal charge against a customs officer or constable that would include, as part of the evidence, a failure to comply with the code.
What is subsection (6) trying to achieve? I need to be persuaded that its inclusion will not provide some form of statutory protection. If that is not the reason Column Number: 827
for it, I do not know why it is included. If it were removed, no damage would be done, and I find its presence odd.
Prepared 8 January 2002
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Earl Howe: My Lords, I support Amendment No. 10 and have added my name to it. I am grateful to my noble friend Lady Chalker of Wallasey for the vivid light that she was able to cast on an important issue.
The recent report by the health ombudsman makes for a shocking read. I am sorry to sayit emerged clearly from what the noble Baroness, Lady Barker, 10 Mar 2003 : Column 1158
saidthat the Department of Health comes out of the report with little credit. Since 1995, four edicts of one kind or another have emanated from Richmond House: the 1995 guidance; an executive letter in 1996; interim guidance following the Coughlan judgment; and yet more guidance in 2001. Despite all that, the ombudsman found that at local level the criteria to determine eligibility for NHS continuing care were being followed wrongly; the criteria were, in any case, not in accordance with central guidance; health authorities had done little or nothing to remedy that; and the Department of Health, in its turn, had done nothing to hold health authorities to account for their shortcomings.
In the Coughlan hearing, the Court of Appeal found that the earlier guidance was unhelpful, because it did not provide unequivocal pointers by which the rules could be correctly implemented, hence the revised guidance that followed. But in her report, the ombudsman says:
"The long awaited further guidance in June 2001 gives no clearer definition than previously of when continuing NHS healthcare should be provided: if anything it is weaker . . . I would find it even harder now to judge whether criteria were out of line with current guidance. Such an opaque system cannot be fair".
That is an appalling indictment, and it is perhaps not surprising that, despite having no formal jurisdiction over the Department of Health, the ombudsman took it upon herselfunusuallyto recommend that the department took certain remedial actions.
One thing is clear: the system is an utter mess. We need to hear from the Minister how he thinks the system of reimbursements foreshadowed by the Bill can be brought into operation smoothly and efficiently, if the procedures for assessing a patient's eligibility for continuing NHS care are in such a shambles. The answer is that it cannot. Step 1 must be to sort that out. Even if the Department of Health were to agree with the ombudsman and decide to promulgate fresh, crystal-clear guidance, the process for drafting the guidance, consulting on it, finalising it and training people up to follow it would, at best, take several months: it cannot be done in a hurry.
Therefore, for the Government to say that they are prepared to countenance only a six month delay on the implementation of the Bill, instead of the year that the House insisted upon three weeks ago, I would suggest is pie in the sky. How can a system like that be allowed to commence when the chances of a hospital making a mistake about the need for social service involvement are so high? The financial consequences of such an errorto the local authority certainly, but more importantly to the patientare potentially so serious that it would be irresponsible to bring the Bill into force without first resolving the issue of continuing care. I put that to the Government today as they decide what to do about the amendment made in your Lordships' Committee.
On 15th January in another place, Jacqui Smith said:
"The first decision that should be made in the assessment process is whether patients are eligible and entitled to NHS continuing care".[Official Report, Commons, 15/1/03; col. 741.]
10 Mar 2003 : Column 1159
I could not agree with the Minister more. That is exactly what should happen. That is why Amendment No. 10 has been tabled. Apart from the main thrust of her criticisms, the health ombudsman was concerned that in the hospitals she looked at there was no documentation to establish how the hospital reached the conclusion that the patient did or did not fall within the criteria for continuing NHS care. Proper recording procedures in every trust are surely essential. That recommendation, too, has been followed up in the wording of Amendment No. 10.
If the provisions of the Bill are to work, the whole system must be transparent and clear to everyonepractitioners, social services and patients. Transparency of decision-making depends on clear and consistent guidance being in place. Without that, we are at severe risk of encumbering and penalising local authorities unfairly, and pauperising patients without justification. That is the issue. I hope that the Minister will take note.
Lord Hunt of Kings Heath: My Lords, this is an important matter. It may be helpful if I respond to this group of amendments by first explaining to noble Lords how the Government are responding to the ombudsman's report. I believe that it sets the context in which we can discuss these amendments. In response to the noble Baroness, Lady Chalker, I recognise that the problems concerning the boundary between health and social care, disagreements between statutory authorities which have a direct impact on the service that people receive and the riskas the noble Baroness describes itof people falling through the net between different statutory authorities, must be tackled with vigour.
One reason for introducing the Bill relates to delayed discharge, ensuring that health and social care work together and that there are no gaps. I believe that the introduction of the single-assessment process is one of the great foundations of trying to ensure that there is no gap between social care and the health service and that people are not treated in the way that the noble Baroness described. Certainly, I accept that the report of the ombudsman is serious and that my department should pay a great deal of attention to it.
Perhaps I may now turn to a number of recommendations made by the ombudsman. The first question is: will the department recommend that all continuing care cases since 1996 are reviewed? In August 2002, in response to a case featured in the ombudsman's report, the Department of Health instructed all strategic health authorities to review previous continuing care criteria and agree new criteria across their boundaries. The department has reiterated to strategic health authorities their responsibility to review continuing care criteria and agree with local councils one set of criteria within their area.
On 27th February, Sir Nigel Crisp, Permanent Secretary at the Department of Health, issued an instruction to the NHS to complete its work, to agree 10 Mar 2003 : Column 1160
with local councils one set of criteria for continuing care in line with the guidance issued by the department in June 2001 and to report back to the department by 28th March with details of the final criteria agreed. Each strategic health authority is required to report back to the department by that same date with details of whether continuing care criteria, in use since 1996, were consistent with the Coughlan judgment. If the criteria were not consistent with that judgment, when was that identified and what action has been taken? In addition, the strategic health authority was asked to give an estimate of the number of people who may have been wrongly assessed under criteria not consistent with that judgment. The ombudsman's report has been sent to all strategic health authorities and social service inspectorate regional offices.
As regards the current guidance and the critique of it by the ombudsman, the Government are to consider the recommendations. We shall review the guidance carefully. The ombudsman's report acknowledges the difficulty of setting fair and easily comprehensive criteria. In Coughlan, the court stated that a clear line between responsibilities of the NHS and local authorities was difficult to draw. Each case should be judged on its own particular circumstance. We shall be looking at those matters very carefully.
In respect of monitoring and checking criteria, I said that all strategic health authorities have been sent copies of the report directly. We expect them to agree new criteria which reflect the Coughlan judgment and ensure a consistent approach to the issue. The Government will pay careful attention to how that is undertaken.
I turn now to the substance of the amendments. Throughout the Bill, we have been clear in our understanding that the first decision in the assessment process is whether someone needs continuing care. That should be done by the relevant NHS body before issuing a Section 2 notice. As pointed out by the noble Earl, Lord Howe, that was emphasised by my honourable friend Mrs Jacqui Smith on Report in another place. There is no doubt that the ombudsman's report highlighted not only problems in four parts of the country, it also identified problems in the assessment process. I readily accept that trusts are not always sufficiently informed of the assessment process and the eligibility criteria. That is a point which we must take seriously.
Therefore, as a result, today I am committing the Government to ensuring that in the regulations governing the form of a Section 2 notice, the NHS will be required to confirm in the Section 2 notice that an assessment for fully-funded NHS continuing care has been carried out before that notice is issued. In making that statement to your Lordships' House today, I hope that I have reassured noble Lords that we expect the assessment of continuing care to be made first, before a Section 2 notice can be issued.
It will not then be possible for anyone who could require NHS continuing care to be discharged to social services before an assessment, informed by the single-assessment process, has been carried out. By placing 10 Mar 2003 : Column 1161
what effectively amounts to requirements on the NHS in regulations to assess the continuing care, that will make it easier for us to revisit and strengthen this provision should it be necessary. Although I have sympathy with the intention of Amendment No. 10, I do not believe that it is required in the light of the commitment that I have given.
The effect of Amendment No. 33 would be to require the commission for healthcare audit and inspection to inspect the criteria for continuing healthcare and their application, along with payments for NHS-funded nursing care, and to take action where they are restrictive.
Again, while I understand completely what the amendment is driving at, I do not think it is necessary. I want to assure noble Lords that we are already acting to ensure that the criteria for continuing healthcare are inspected. We have asked CHAI if the inspection of the national service framework for older people could include reference to continuing care within the examination of person-centred care and age discrimination. I have referred already to the review being undertaken by strategic health authorities of the continuing care criteria. We shall look closely at the reports from the health service due by 28th March.
On the application of criteria, the ombudsman did not actually recommend scrutiny of the application of criteria in the future, but she did recommend that the department's guidance should be reviewed and that the assessment of eligibility for continuing care should be linked with the single assessment process. I have already explained that we are taking measures to strengthen assessment at the point of hospital discharge and that we are already taking practical action to address the issues raised by this amendment.
There is a further reason why I would suggest that the amendment would not work well. The department's current guidance states that:
"The Coughlan case illustrated that decisions about the respective responsibilities of the NHS and social care must be made on the basis of a careful assessment of the facts in each individual case. This should be borne in mind at all times".
The law has not changed to allow us to say anything different and any actions to scrutinise the application of criteria must remember it. Is it really feasible to review the application of criteria in every single case? Surely it is better to ensure that the framework within which these decisions are made fully reflects the Coughlan judgment. Strengthening assessment and making strategic health authorities agree new Coughlan-compliant criteria will do that.
Again, the last part of the amendment on scrutinising NHS nursing care payments is not necessary. We have the system in place already. We said in guidance that people entering a nursing home after October 2001 should have their needs assessed within three months and every 12 months after that, or when there is a significant change in their health status. A formal review can be requested if people are dissatisfied with the amount of care they are receiving from a registered nurse, and a further determination of 10 Mar 2003 : Column 1162
nursing care needs carried out. The strategic health authority's continuing care panel may also review any determination of care by a registered nurse.
I should also remind noble Lords that the reason we have three bands of nursing care is to ensure that people receive the care they need. During the first 12 months of the scheme very few reviews were carried out, suggesting that any complaints were resolved at the local level. So we already have a system, with reviews on a case by case basis, to provide people with the nursing care they need.
In conclusion, I do not underestimate the importance of the matters that have been raised by noble Lords in our debate. However, my assurance is that in the regulationsthe draft of which noble Lords have seen alreadywe shall ensure that, in governing the form of a Section 2 notice, the NHS will be required to confirm in the notice that the assessment for fully-funded NHS continuing care has been carried out. Alongside that is the action we are taking in the light of the ombudsman's report, including the review of what has happened in the NHS and the reports that will be submitted to the department by the end of March. I hope that I have been able to assure noble Lords that we are taking this matter extremely seriously.
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Calvin Madison denied release from prison
By Chris GreenRockford Register Star
SPRINGFIELD — Convicted murderer Calvin Madison will stay behind bars for at least another year, Winnebago County State’s Attorney Joe Bruscato announced today.During an En Banc hearing in Springfield, the Prisoner Review Board voted 10 to 4 to keep Calvin Madison, 67, in prison. Last year, five board members, three short of the number needed for parole, voted for his release.Madison, an inmate at the Graham Correctional Center, will be given another opportunity for parole next year.On Jan. 22, 1970, Madison was armed with a gun when he robbed the family-run Gas-for-Less service station, 2201 W. State St.On duty that day was 19-year-old John Hogan. Hogan did as his father instructed him to do in a robbery.He handed over the money — about $100 in cash — and followed the orders of Madison and accomplice Thomas Ray Charles. Madison then forced Hogan into a restroom, ordered him to his knees and executed him with four shots to the back of the head from a small caliber pistol.Madison, who has been incarcerated for 44 years, was originally sentenced to death, but he was later resentenced to 75 to 150 years after the U.S. Supreme Court ruled the death penalty was unconstitutional.John Hogan’s brother, Terry, who was in Springfield for the hearing, said he was pleased with the board’s decision to keep Madison behind bars.“I would have been more pleased if he had got the rest of his natural life,” he said.Because of Madison’s health and age, Hogan said he learned at the hearing that Madison will likely be eligible for parole on a yearly basis.“That’s OK,” he said. “We’ll come back fighting again next year, and the year after that because the Hogan family is not going to go away.”Bruscato and Assistant State’s Attorney Marilyn Hite Ross, chief of the Criminal Bureau, joined Hogan family members Thursday in Springfield for the hearing. Bruscato believes if Madison were to be let out of prison he could be a danger to the residents of Winnebago County.Immediate family members of Madison could not be reached for comment.Chris Green: 815-987-1241; [email protected]; @chrisfgreen About Us
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New York High Court Smacks Down Challenge to Marriage Equality Law
John M. Becker
The New York Times reports that the state’s highest court declined to hear a case challenging New York’s marriage equality law. The paper referred to that case as “the only significant legal threat to same-sex weddings in the state,” adding that as far as New York Governor Andrew Cuomo — a strong backer of marriage equality — is concerned, this means the law is here to stay:
“With the court’s decision, same-sex couples no longer have to worry that their right to marry could be legally challenged in this state,” Mr. Cuomo, a Democrat, said in a statement on Tuesday. “The freedom to marry in this state is secure for generations to come.”
Andrew Cuomomarriage equalityNew York About the Author
October 25, 2012 at 11:01 am - Excellent news!
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Cumberland County attorney dies
Leave this field blankYour e-mail address:*Your friends e-mail addresses (comma separated):*Subject:*Message:*A friend wanted you to see this item from WRAL.com: http://wr.al/Nsk0Get a new codeAre you human?*You must enter the characters with black color that stand out from the other characters
Cumberland County attorney suffers stroke
Fayetteville, N.C. — Cumberland County Attorney Grainger Barrett died Wednesday at Durham Regional Hospital, two days after suffering a stroke, officials said Thursday.“We are in shock, and our hearts are broken for the Barrett family," County Manager James Martin said in a statement. "This tremendous loss will be felt beyond Fayetteville and our community. Grainger was committed to representing the interests of Cumberland County and dedicated to the legal profession."Barrett, 59, joined the Cumberland County staff in 1998 and had been the county attorney since 1999. He previously served as the attorney for Person County and Chapel Hill and was an assistant professor at the Institute of Government at the University of North Carolina-Chapel Hill, as well as working in private practice and as a corporate attorney.A memorial service is planned for next Monday afternoon. Rogers and Breece Funeral Home in Fayetteville will be assisting the family with the arrangements, and details will be forthcoming.
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Green energy from blue sea 20 May 2013 Leave a comment
in Advocacy, Announcements, Human Rights, Justice, Kractivism, Law, Minority Rights
Tags: ANERT, Idukki, Kanjikode, Kerala, Ministry of New and Renewable Energy, Ramakkalmedu, Watt, Wind farm
Tiruvananthapuram, May 18, 2013
T. Nandakumar
AP File photo of Donghai Bridge Offshore Wind Farm, Shangai, China. Agency for Non-conventional Energy and Rural Technology (ANERT) is preparing to take up a wind monitoring study to identify potential offshore sites in Kerala.
Offshore wind farms to produce power for Kerala
A few years from now, wind farms located at sea could be churning out clean energy to feed the starved power grid in Kerala.
The Agency for Non-conventional Energy and Rural Technology (ANERT) is preparing to take up a wind monitoring study to identify potential offshore sites. The project is to be launched with the assistance of the Dutch government.
The Netherlands has made significant progress in harnessing wind as a renewable energy source. The country has set a target to build 6,000 MW of offshore wind power by 2020, mostly from the North Sea. During a recent discussion held with officials in Kerala, representatives of the Dutch government offered to collaborate in developing offshore wind farms.
ANERT director M. Jayaraju told The Hindu that the study would be followed by a pilot project, subject to a policy decision by the government. The project, he said, would be launched with the necessary safeguards to ensure that the offshore platforms did not interfere with fishing activities. The Ministry of New and Renewable Energy (MNRE) has identified the Kerala-Konkan coast as one of the potential sites for offshore wind farms in India.
Offshore wind farms are preferred because of the non-availability of land in densely populated coastal areas with high wind potential. The added efficiency of offshore wind power is another advantage over onshore wind turbines.
ANERT is also preparing to take up a wind-monitoring study to assess the potential for land-based wind farms in the coastal regions of the State. The study would be carried out at four locations with the help of the Centre for Wind Energy Technology (C-WET), a Chennai-based autonomous research and development institution under MNRE.
C.K. Chandrabose, Joint Technical Director, Wind Energy project, ANERT, said the year-long studies would generate real-time, on-site data on the wind potential of offshore and coastal regions in Kerala. The base data would be a crucial factor in attracting independent power producers to set up wind farms, he said.
ANERT is also gearing up to update the available wind monitoring data at potential sites on land. The total technically-feasible onshore wind potential of the State is estimated to be around 800 MW, limited to 17 locations in Palakkad, Idukki, and Thiruvananthapuram, where the wind speed is above 15 km/hr.
The main windy areas in the State are the eastern mountainous regions of Idukki district bordering Tamil Nadu and the elevated areas in the Palakkad gap. Ponmudi in Thiruvananthapuram is another potential site.
Mr. Chandrabose said monitoring stations equipped to generate wind data at a height of 80 metres had been installed at Kanjikode in Palakkad, Chelamala in Malappuram, and Pullikanam, Vandiperiyar and Kulathumedu in Idukki.
Meanwhile, two new wind farms, slated to come up soon at Kanjikode and Ramakkalmedu in Idukki will augment the State’s total installed capacity of wind energy. While the farm at the Kinfra Park in Kanjikode will add 22 MW, the one at Ramakkalmedu being set up by NTPC will add another 20 MW to the current installed capacity of 34 MW generated by KSEB at Kanjikode and independent power producers at Attappady and Ramakkalmedu.
Germany’s Offshore Wind Farm Alpha Ventus Fed 267.8 GWH Into Grid In 2012 (cleantechnica.com)
Previous Joint Statement – Stop the Police Brutality Against Maruti Suzuki Workers Next France becomes the 14th country to legalize same-sex marriage
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Click here to search Universal Declaration of Human Rights (UDHR)
George J. Andreopoulos
UDHR
International Federation of Human Rights
Universal Declaration of Human Rights (UDHR), foundational document of international human rights law. It has been referred to as humanity’s Magna Carta by Eleanor Roosevelt, who chaired the United Nations (UN) Commission on Human Rights that was responsible for the drafting of the document. After minor changes it was adopted unanimously—though with abstentions from the Belorussian Soviet Socialist Republic (SSR), Czechoslovakia, Poland, Saudi Arabia, South Africa, the Soviet Union, the Ukrainian SSR, and Yugoslavia—by the UN General Assembly on December 10, 1948 (now celebrated annually as Human Rights Day), as a “common standard of achievement for all peoples and all nations.” The French jurist René Cassin was originally recognized as the principal author of the UDHR. It is now well established, however, that, although no individual can claim ownership of this document, John Humphrey, a Canadian professor of law and the UN Secretariat’s Human Rights Director, authored its first draft. Also instrumental in the drafting of the UDHR were Roosevelt; Chang Peng-chun, a Chinese playwright, philosopher, and diplomat; and Charles Habib Malik, a Lebanese philosopher and diplomat.U.S. delegate and former first lady Eleanor Roosevelt addressing the United Nations (UN) on the …Stock footage courtesy The WPA Film LibraryEleanor Roosevelt holding a poster of the Universal Declaration of Human Rights.U.N. Photo
human rights: The Universal Declaration of Human Rights
Humphrey’s main contribution lay in producing the very inclusive first draft of the declaration. Cassin was a key player in the deliberations held throughout the commission’s three sessions as well as those of the commission’s drafting subsidiary. At a time of increasing East-West tensions, Roosevelt used her enormous prestige and credibility with both superpowers to steer the drafting process toward its successful completion. Chang excelled in forging compromises when the committee seemed incapable on the verge of an impasse. Malik, whose philosophy was firmly rooted in natural law, was a major force in the debates surrounding key provisions and played a critical role in elucidating and refining basic conceptual issues.
Declaration of Breda
Declaration of the Rights of Man and of the Citizen
The massive and systematic human rights abuses committed during World War II, including the Nazi genocide of Jews, Roma (Gypsies), and other groups, spurred the development of an international human rights instrument. In particular, the inclusion of crimes against humanity in the Charter of the International Military Tribunal, which paved the way for the subsequent Nürnberg trials, signaled the need to hold the perpetrators of atrocities internationally accountable for their actions irrespective of any domestic provisions to the contrary or the silence of domestic laws. At the same time, the drafters of the UN Charter sought to highlight the interrelationship between war prevention and fundamental human rights. Two key ethical considerations underscored the main tenets of the UDHR: a commitment to the inherent dignity of every human being and a commitment to nondiscrimination.The declaration’s drafting process was marked by a series of debates on a range of issues, including the meaning of human dignity, the importance of contextual factors (especially cultural) in the determination of the content and range of rights, the relationship of the individual to the state and to society, the potential challenges to the sovereign prerogatives of member states, the connection between rights and responsibilities, and the role of spiritual values in individual and societal welfare. The onset of the Cold War between the United States and the Soviet Union and the resulting deterioration of the global political climate led to sharp ideological exchanges on comparative assessments of the human rights situations in the Soviet-bloc countries and in countries under colonial rule. The disagreements underlying these exchanges eventually resulted in the abandonment of a plan for an international bill of rights, though they did not derail efforts to develop a nonbinding human rights declaration.
Famous Documents
The UDHR comprises 30 articles that contain a comprehensive listing of key civil, political, economic, social, and cultural rights. Articles 3 through 21 outline civil and political rights, which include the right against torture, the right to an effective remedy for human rights violations, and the right to take part in government. Articles 22 through 27 detail economic, social, and cultural rights, such as the right to work, the right to form and to join trade unions, and the right to participate freely in the cultural life of the community. The latter right relates to everyone’s entitlement to be directly involved in and appreciative of the arts, and it is clearly linked to the full development of one’s own personality (which, in accordance with article 26, constitutes one of the goals of the right to education). Because of the ideological fissures caused by the Cold War and the concomitant failure to develop a legally binding international human rights instrument, it became common to view civil and political rights independently of economic, social, and cultural rights, though this is a misinterpretation of both the letter and the spirit of the document. For example, it is impossible for a society to fulfill its commitment to the right to education (Article 26) without taking seriously its commitment to the right to seek, receive, and impart information (Article 19). Likewise, it is difficult to envisage the realization of the right to form and to join trade unions (Article 23) without a commensurate realization of the right to peaceful assembly and association (Article 20). Yet, these obvious linkages were obscured by the selective use of human rights norms by the main adversaries in the Cold War. The selectivity served to highlight what each side considered as its respective strength vis-à-vis the other: the terrain of civil and political rights for the Western bloc and the terrain of economic, social, and cultural rights for the Eastern bloc.
See All Stories The indivisibility of human rights in Article 28—which many consider the most forward-looking article of the UDHR, though it has been one of the least-studied—links all the enumerated rights and freedoms by entitling everyone to “a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” By pointing to a global order different from that found in the contemporary world, this article is indicative, more than any other in the declaration, that the protection of human rights in its totality could transform the world and that such a future global order would incorporate the norms found in the UDHR. Ostensibly, the UDHR’s provisions highlight the interrelated and interdependent nature of different categories of human rights as well as the need for global cooperation and assistance to realize them.
The document’s nonbinding status was initially perceived as one of its major weaknesses. Authoritarian states, which usually sought to protect themselves against what they considered interference in their internal affairs, approved of this feature of the declaration, and even some democratic countries initially worried about the potentially intrusive nature of the obligations that a legally binding document would impose. Some observers have argued, however, that its nonbinding status is one of the UDHR’s major advantages. Its inherent flexibility has offered ample room for new strategies to promote human rights and has allowed it to serve as a springboard for the development of numerous legislative initiatives in international human rights law, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of which were adopted in 1966. In addition, the UDHR has been reaffirmed in numerous resolutions passed by organs and agencies of the UN, and many countries have incorporated it into their national constitutions. These developments have led many analysts to conclude that, despite its nonbinding status, its provisions have achieved a juridical status akin to that of norms of customary international law.One factor contributing to the UDHR’s moral authority is precisely that it transcends positive international law. Indeed, it enunciates general moral principles applicable to everyone, thus universalizing the notion of a fundamental baseline of human well-being. Despite its shortcomings, including a preoccupation with the state as the main perpetrator of human rights violations—which has marginalized human rights problems stemming from socially and culturally sanctioned abusive behaviour and violence, whose perpetrators are often nonstate actors such as individuals, families, communities, and other private institutions—the UDHR was and remains the key reference point for international human rights discourse. For example, during the 1960s and ’70s, several organs of the United Nations system used the declaration’s provisions to condemn racial discrimination in South Africa and Southern Rhodesia (now Zimbabwe). More than any other instrument, the UDHR is responsible for making the notion of human rights nearly universally accepted.George J. Andreopoulos
More about Universal Declaration of Human Rights (UDHR)
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Amnesty International USA - Universal Declaration of Human Rights
United Nations - Universal Declaration of Human Rights
Adopted by the United Nations General Assembly on December 10, 1948, as Resolution 217A (III). Available in several languages.
Universal Declaration of Human Rights (UDHR)
most often, the murder of a woman or girl by male family members. The killers justify their actions by claiming that the victim has brought dishonor upon the family name or prestige. In patriarchal societies,...
Take this History quiz at encyclopedia britannica to test your knowledge of the Declaration of Independence, the Magna Carta, and other famous documents.
https://www.britannica.com/topic/Universal-Declaration-of-Human-Rights
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Submit Search Federal Bureau of Investigation JOE MATTHEW CONSTANCE
Additional Violent Crimes
JOE MATTHEW CONSTANCE
Unlawful Flight to Avoid Prosecution - First Degree Murder, Aggravated Assault, Aggravated Burglary
View Poster
Download Poster
Photograph taken in 2010
Photograph taken circa 1998
Joe Constance, Joe M. Constance, Joe Mathew Constance, Joseph Constance
Date(s) of Birth Used
July 27, 1967, February 27, 1967
190 to 220 pounds
Scars and Marks
Constance has a tattoo on his left arm and a mole on his neck.
NCIC
The FBI is offering a reward of up to $20,000 for information leading to the arrest and conviction of Joe Matthew Constance.
Joe Matthew Constance, a convicted felon, is wanted for his alleged involvement in the murder of his estranged wife in Calcasieu Parish, Louisiana, on June 5, 2011. It is alleged that Constance forcefully entered his estranged wife's residence, confronted other occupants of the residence, threatened to shoot two of the occupants and physically assaulted another one while demanding to know the location of his estranged wife. When Constance located his estranged wife in another area of her residence, he allegedly shot and killed her, and fled the area.
That same day, Constance was charged with first degree murder, aggravated assault and aggravated burglary, by the Fourteenth Judiciary District Court, State of Louisiana, Parish of Calcasieu, and a state warrant was issued for his arrest. A federal arrest warrant was issued by the United States District Court for the Western District of Louisiana on October 16, 2014, after Constance was charged federally with unlawful flight to avoid prosecution.
SHOULD BE CONSIDERED ARMED AND DANGEROUS
Submit a Tip:
If you have any information concerning this person, please contact your
local FBI office or the nearest
American Embassy or Consulate.
Field Office:
Submit an anonymous Tip online
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Home > News and The Champion > NACDL Reports
Electronic Surveillance & Government Access to Third Party Records
NACDL White Paper: Electronic Surveillance & Government Access to Third Party Records In February, 2012 NACDL’s Board of Directors adopted a white paper report on Law Enforcement Access to Third Party Records. Federal laws protecting individual privacy rights in electronic communications have not been meaningfully updated in over 25 years, even though many of today’s technologies were not even conceived of when Congress considered the legislation and when the Supreme Court created the “Third Party Doctrine.” Because of society’s reliance on third party carriers, such as Internet service providers, cellular phone service providers, and “cloud” computing services, to communicate, work and socialize, privacy laws need to be updated to keep pace with today’s evolving technologies. This white paper discusses the current status of the law, including federal laws such as the Electronic Communications Privacy Act, and Supreme Court precedent, including United States v. Jones, and concludes with recommendations for reform, such as a recommendation that law enforcement officers should be required to obtain a warrant based on probable cause before they can access the content of electronic communications or geolocation information.
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Electronic Surveillance & Government Access to Third Party RecordsEvaluating Grand Jury ReformEvaluating Grand Jury Reform(3)Federal Grand Jury Reform Report & Bill of RightsMinor Crimes, Massive Waste: The Terrible Toll of America's Broken Misdemeanor CourtsNACDL ReportsNational Indigent Defense Reform: The Solution is Multifaceted(2)Principles and Recommendations for Strengthening Forensic Science in the CourtroomProposals to Reform the Federal Money Laundering StatutesProposed 18 USC § 3014, Duty to Disclose Favorable Information and Commentary[First] [Previous] [Next] [Last]
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YOU ARE HERE: LAT Home→Collections→BarriersSegway company owner dies in fallBritish businessman Jimi Heselden, who bought the company last year, dies in a fall off a cliff on his West Yorkshire estate, apparently while riding a Segway.September 27, 2010|By Janet Stobart, Los Angeles Times Reporting from London — A British businessman who last year bought the company that makes the Segway scooter fell to his death off a cliff in northern England, apparently while riding one of the vehicles on his estate. West Yorkshire police said in a statement that the body of Jimi Heselden, 62, had been pulled Monday from the River Wharfe near the town of Boston Spa after a call from a passerby. Local media reports said he was believed to have lost control of his scooter Sunday on a wooded path that runs close to a 30-foot drop to the river. Heselden bought the New Hampshire-based Segway company in December. The former coal miner made his fortune after losing his job in the widespread mine closures of the mid-1980s. Using his expertise in coal-mining blast methods, he formed a company, Hesco Bastion, which manufactures protective barriers. The barriers, known as "sand baskets," consist of wire frames with liners that are filled with dirt, sand or rocks. They are considered better than sandbags in protecting against explosions and have been widely adopted by militaries all over the world, including the U.S. military, since the 1991 Persian Gulf War. Heselden, said to be worth $265 million, became well known in Yorkshire as a philanthropist who donated to local charities and more recently to a fund to help rehabilitate injured soldiers. Tributes from local and national figures praised him as a generous local hero who never forgot his roots. British law restricts the use of Segway scooters to private land. The device, invented by Dean Kamen, can travel at a top speed of about 12 mph. In July, a rider was prosecuted for riding one on a sidewalk. However, the Daily Telegraph reported that Segway sales, which had reached only half the target of 40,000 vehicles last year, had shown a 12% increase for the first six months of this year. Stobart is a staff writer in The Times' London Bureau. MORE:Seizure Led to FloJo's DeathHis 104 scores make his caseRestaurant review: South Beverly GrillBrutal Murder by Teen-Age Girls Adds to Britons' ShockComaneci Confirms Suicide Attempt, Magazine SaysAdvertisement
FROM THE ARCHIVESMillionaire Segway owner dies in cliff fall in UKSeptember 27, 2010A labor dispute threatens to tear a Kern County mining town...January 31, 2010Segway Recalls 6,000 ScootersSeptember 27, 2003Cities' Choice: Make Way, or Do Away With SegwaysJuly 6, 2003Don't Take Bush Plan on FaithApril 29, 2001MORE STORIES ABOUTBarriersDean KamenSegwayCopyright 2016 Los Angeles TimesTerms of Service|Privacy Policy|Index by Date|Index by Keyword
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Infamous abortion doctor invoked in court
By Patricia Kilday Hart on January 6, 2014 at 4:15 PM
Abortion rights advocates challenging Texas’s new law requiring doctors performing abortions to obtain local hospital admitting privileges faced an unfriendly panel of Justices Edith Jones, Catharina Hayes and Jennifer Elrod at New Orleans’ Fifth Circuit Court of Appeals Monday. All of the justices expressed skepticism that the new law imposed an “undue burden” on women. But Jones, whose outspoken nature has sparked an official complaint against her, made her feelings about abortion clear when she invoked the name of Kermit Gosnell, the infamous Philadelphia doctor convicted of murder last May for horrific late-term abortion procedures.
Janet Crepps, attorney for the Center for Reproductive Rights, noted that many doctors are unwilling to provide abortions because of “harassment and violence,” referring to the 2009 murder of Kansas doctor George Tiller. Jones interrupted, asking, “What about Dr. Gosnell?”
Crepps responded that Gosnell engaged in unacceptable “substandard” practices when Jones interrupted her: “That’s a pretty mild way of describing a situation.”
Last June, U.S. Supreme Court Chief Justice John Roberts asked the District of Columbia Circuit Court to investigate a complaint filed by civil rights organizations against Jones for remarks she made at the University of Pennsylvania law school disparaging minorities. According to several people present, she claimed in her February speech that that certain “racial groups like African-Americans and Hispanics are predisposed to crime,” and are “prone to commit acts of violence” than people of other ethnicities. She also defended the death penalty on the grounds that an impending execution induces many murderers make peace with God .
Patricia Kilday Hart View Comments Blog Search
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← Claremont Center for Constitutional Jurisprudence files brief supporting PLF’s Obamacare challenge
I spy with my little eye a “water of the United States” →
Will the courts enforce the Origination Clause against Obamacare?
Posted on December 5, 2012 by Timothy Sandefur
The Wall Street Journal’s James Taranto writes that our challenge to Obamacare is unlikely to succeed. Assuming that Obamacare’s monetary exaction for not buying insurance is a tax, as the Supreme Court called it in its June opinion, still not all taxes are “bills for raising revenue,” which the Constitution requires to be generated by the House. Thus “the revenues from the ObamaCare mandate tax are ‘incidental’ to its primary purpose, which is to encourage people to buy insurance.” And if that’s the case, writes Taranto, the Origination Clause does not apply, under the Supreme Court’s decision in United States v. Munoz-Flores.
Obviously we cannot say what the courts will decide until they do, but we’re under no illusions at PLF. We’ve been in the business of litigating for freedom for 39 years, and in that time we’ve learned that such battles are typically waged uphill. We are all too familiar with the obstacles, particularly when it comes to the Patient Protection And Affordable Care Act—a law most Americans oppose, and which at the last minute was rescued from constitutional oblivion by a “saving construction” which to this day the Obama Administration itself refuses to accept. (It’s telling that the Administration claims to have won the NFIB case, but still denies it’s a tax.) On the other hand, remember that a year ago the overwhelming consensus of lawyers, judges, and law professors was that the Commerce Clause challenge to Obamacare was doomed—indeed, legally frivolous and laughable. Ultimately, that challenge succeeded, and it did so because it was right on the merits. All honest lawyers can do to win a case is be right on the merits. The rest is up to the court. In any event, we’ve learned through nearly two generations of suing the government not to try to predict a judge’s decision.
But is the Obamacare tax a “bill for raising revenue”? Taranto’s right that the Supreme Court has distinguished taxes that are “bills for raising revenue” and uses of the tax power that are something else—“penalty assessments” or “fines” used to enforce compliance with a law passed under one of Congress’ enumerated powers. The Constitution’s limits on the taxing power don’t apply to the latter. In Munoz-Flores, the Court upheld a penalty that convicted criminals were forced to pay into a special “victims’ compensation” fund, because that was not a bill for raising revenue—it was an assessment used to enforce compliance with a federal criminal law. In Millard v. Roberts, what looked like a tax was actually a financial penalty used to enforce compliance with a law regulating railroads, which was passed under Congress’ enumerated power to govern the District of Columbia. Courts of Appeals have upheld similar financial penalties used to enforce compliance with regulations of interstate commerce. At first, the Obamacare penalty looks a lot like this.
Yet the NFIB decision said no. There, the majority ruled that the Individual Mandate is only a tax, passed solely on the basis of Congress’ taxing power, and not a penalty used to enforce compliance with a regulation of commerce. The exaction “may for constitutional purposes be considered a tax, not a penalty,” the Court said. “[U]nlike the ‘prohibitory’ financial punishment in Drexel Furniture,” a person may make a “reasonable financial decision to make the payment rather than purchase insurance.” Second, the law doesn’t require any kind of mental state—it doesn’t assess a person’s wrongfulness—it just requires a person to pay. Third, the IRS “is not allowed to use those means most suggestive of a punitive sanction” in order to enforce the exaction. For these reasons, the Court said the Obamacare tax was the reverse of the penalty in the Drexel Furniture case, which though calling itself a tax was actually a penalty for enforcing compliance with a regulation of commerce. Here, what called itself a penalty was actually only a tax. Obviously it was meant (unjustly) to make people buy insurance against their will, but that “does not mean that it cannot be a valid exercise of the taxing power…. It suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance.” Whatever one thinks of this, we have to take the Court at its word: the law is only a tax. And the justices went on to determine whether it was an unconstitutional direct tax, which they would not have done if the tax were only being used to enforce compliance with a regulatory scheme: “Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution.”
Contrast that with the Fourth Circuit’s decision in Rodgers v. United States, a follow-up to the infamous Wickard v. Fillburn. There, the farmer argued that the fee for growing too much wheat was an unconstitutional direct tax. The court ruled it was not, because it was really not a tax—only an “imposition of sanctions by the Congress under the commerce clause.” Since the Constitution’s various limits on the taxing power “relate[] solely to taxation generally for the purpose of revenue only, and not impositions made incidentally under the commerce clause,” the penalty wasn’t subject to the constitutional restrictions on the taxing power.
So while Taranto is right that the Court has created two categories of monetary exactions—those that are bills for raising revenue and those that exist just to enforce compliance with some other law—the NFIB decision places the Obamacare exaction squarely in the former and not in the latter category. And the exception to the Origination Clause that the cases have established applies only to the latter. Taranto writes that it’s “far from clear that ObamaCare was a ‘Bill for raising Revenue,’ since its main purpose was to remake the health insurance market,” but Congress can “remake the market” either through a Commerce Clause enactment and associated penalties, which are not subject to the Origination Clause, or through a tax itself—which is subject to the Origination Clause.
Of course, the Court could construct a new exception to the Origination Clause, which would exempt even legislation that, like the PPACA, rests solely on Congress’ power to tax. It could expand the exception to apply not just to enforcement assessments attached to Commerce Clause enactments or other enumerated powers (such as were at issue in Munoz-Flores, Rodgers, and other cases), but also to behavior-changing taxes that rest solely on the taxing power. But that really would open the door to tax-power-based government reconstructions of American society, and with minimal democratic oversight. That would be as much an unprecedented innovation in constitutional law as was the effort to expand the Commerce Clause to authorize compulsory purchases, which the NFIB majority rejected. And if the NFIB decision risks opening the door to tax-based mandates—something the Court denied—then it is all the more important that the Constitution’s democratic checks and balances over that taxing power should be enforced, not ignored. At least allow voters to control this power as the framers intended.
Again, we can’t know what the courts will do until they do it, but I hope I’ve shown why it’s worthwhile for us to litigate this case.
All of this talk could be moot, of course, if Chief Justice Roberts’ Commerce Clause opinion in NFIB is just non-binding dicta. Mr. Taranto strongly believes it isn’t, and so do I, but until the courts say so, it’s still possible that the trial judge could ignore all our tax arguments and uphold the Individual Mandate as an exercise of the Commerce Clause, on the grounds that the NFIB decision didn’t resolve that issue one way or the other. We’ve also asked the court to clarify this point, which is another reason our case is important.
Finally, keep in mind that ours is only one of several challenges to Obamacare still being litigated. There’s the Oklahoma case challenging Obamacare exchanges, the Arizona case challenging IPAB, and the cases challenging the contraception mandate, and probably others. At the same time, states are refusing to collaborate with the Obamacare mandate by declining to establish exchanges. All of this is critical to keeping open the possibility of market-based health insurance reform and strengthening resistance against the ultimate government takeover of medicine. We know this is a hard case to win. But so was the NFIB case, and so is every case seeking to rescue liberty from the ever-growing regulatory welfare state. We cannot succeed if we do not make the effort.
For more on our case, please take a moment to listen to our latest PLF Podcast, or check out our litigation backgrounder and our blog posts about this case.
Posted in Health Care, No to Big Government Tagged ACA, individual mandate, IPAB, James Taranto, Obamacare, origination clause, PPACA permalink
About Timothy Sandefur
Timothy Sandefur is a Principal Attorney at the Pacific Legal Foundation. View all posts by Timothy Sandefur Post navigation
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Cedillo's pay-cut challenge killed by state claims board Assemblyman Gil Cedillo's challenge of a 2009 pay cut totaling millions in pay and benefits for legislators and other California elected officials was rejected today by a state agency.
The Victim Compensation and Government Claims Board sustained a staff recommendation in turning thumbs down. The action was taken without comment as part of the consent agenda. Cedillo said that he expected his claim to be rejected by the state and that he plans to pursue his fight by suing.
The Los Angeles Democrat contends that the California Citizens Compensation Commission exceeded its authority by reducing pay and benefits by 18 percent, a cut that went into effect in December 2009.
Specifically, Cedillo's claim argues that the panel has no control over per diem and car allowances; that cutting officials' pay mid-term is unconstitutional; and that it did not give adequate consideration to time spent on the job and to pay for similar positions in the public and private sectors.
Cedillo also contends that Gov. Arnold Schwarzenegger used the possibility of a pay cut - the commission consists entirely of gubernatorial appointees - as leverage in an attempt to extract budget concessions from legislators. Schwarzenegger, through an aide, has denied Cedillo's accusation.
Cedillo, who is seeking back pay for elected officials affected by the 2009 pay cut, said last week that his challenge is a matter of principle because state commissions must abide by the law. He said his challenge would benefit colleagues but that he is not acting at their behest or in conjunction with them.
Asked who will pay the attorneys fees in a court fight, Cedillo said simply, "We'll figure that out."
Besides California's 120 legislators, Cedillo's claim would affect the state's constitutional officers - ranging from governor to schools superintendent to members of the state Board of Equalization.
The 2009 pay cut sliced legislative salaries from $116,208 to $95,291, and it chopped per diem from $173 to $142 per day. The latter is a stipend given to lawmakers while the Legislature is in session to defray living expenses while they are away from home in Sacramento.
Other state elected officials also saw their pay reduced by 18 percent -- for example, gubernatorial pay fell from $212,179 to $173,987, and Board of Equalization salaries dropped from $159,134 to $130,490.
* Updated at 1 p.m. with reaction from Assemblyman Gil Cedillo.
Categories: Assembly, Senate
Posted by Jim Sanders
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MS Supreme Ct.
In the Matter of the GUARDIANSHIP OF Blaine Michael ROSHTO
In the Matter of the GUARDIANSHIP OF Blaine Michael ROSHTO, A Minor: Natalie Deason v. Joseph M. Stinson, Guardian Ad Litem.
No. 2012–IA–01238–SCT.
EN BANC.James W. Shelson, Robert Gregg Mayer, Fred L. Banks, Jr., Gary L. Honea, attorneys for appellant. Joseph M. Stinson (Pro Se), attorney for appellee. ¶ 1. In the instant guardianship case, the ward's guardian petitioned for transfer of the guardianship to Louisiana, where the ward and guardian had moved. Also before the court was a proposed investment plan for the ward's proceeds from a settlement. The chancellor denied both the request to transfer the guardianship and the guardian's proposed investment plan, and the guardian appealed. Finding no error, we affirm.Facts and Procedural History¶ 2. Blaine Roshto was born to Shane and Natalie Roshto on February 13, 2007. On April 20, 2010, Shane died in the Deepwater Horizon oil rig explosion. Natalie and Blaine were Shane's sole heirs and wrongful death beneficiaries. The Amite County Chancery Court appointed Natalie as Blaine's guardian, because Blaine had a potential claim for damages for the wrongful death of his father. In April 2011, the court authorized a substantial settlement on Blaine's behalf. In light of a dispute regarding attorneys' fees in the wrongful death suit and a request from Natalie to invest Blaine's funds in non-insured deposit accounts, the chancellor determined that a guardian ad litem was needed to protect Blaine's interest. The court appointed Joseph Stinson as Blaine's guardian ad litem.¶ 3. Natalie married Slade Deason in July 2011, and she and Blaine moved to Slade's hometown in Louisiana.1 On December 29, 2011, Natalie filed a “Petition to Approve Final Accounting and for Authority to Transfer Guardianship,” requesting that the court transfer the guardianship to Louisiana. Natalie had hired financial planning professionals and tax attorneys to assist her with financial decisions related to Blaine's portion of the settlement. Attached to her petition to transfer was an investment proposal for Blaine's settlement funds, which suggested placing approximately half of Blaine's assets in a tax-free structured settlement and putting the other half into a managed “grantor asset protection trust.” The petition to transfer stated that, since Blaine was a resident of Louisiana, the Louisiana court had jurisdiction and was “the appropriate court to approve the investment” of Blaine's funds.¶ 4. The chancery court held two hearings on Natalie's motion to transfer and the investment proposal, during which the chancellor heard testimony from Natalie, the guardian ad litem, financial advisors, and one of Natalie's attorneys. The chancellor heard extensive testimony from and asked questions of the financial experts regarding the proposed investments as well as the Certificate of Deposit Account Registry Service (CDARS).2 Because the CD interest rate at the time was low and the income earned would be taxed, the financial advisors opined that placing the entire settlement in CDARS effectively would give Blaine a negative rate of return, especially when inflation is considered. In addition to the live testimony, the parties submitted information and affidavits pertaining to the potential investment strategies. The guardian at litem also filed an extensive written report, to which Natalie responded. The guardian ad litem opposed both the transfer to Louisiana and Natalie's proposed investment strategy.¶ 5. Throughout both proceedings, the chancellor repeatedly expressed that her focus was on Blaine's best interest. After considering the pleadings and reports, holding two hearings, listening to extensive testimony from both sides, and engaging in the discussion and questioning the witnesses, the chancellor-noting that the she had “taken more testimony regarding the investment of this minor's fund than any other case during my tenure in office”—denied Natalie's request to transfer the guardianship to Louisiana and her investment proposal. The chancellor ordered Natalie to deposit the funds in an FDIC insured bank account in Mississippi and to use CDARS. Natalie filed a petition for interlocutory appeal.Discussion¶ 6. Natalie raises two issues on appeal. First, she claims that the chancery court abused its discretion by denying the transfer of the guardianship to Louisiana. She maintains that if the Court finds abuse of discretion and authorizes the transfer, then the second issue is moot. However, if the Court finds that the guardianship should remain in Mississippi, Natalie asserts that the chancery court abused its discretion in directing that the entire settlement amount be invested in CDARS.¶ 7. “A minor under guardianship is a ward of the [c]hancery [c]ourt.” Carpenter v. Berry, 58 So.3d 1158, 1162 (¶ 19) (Miss.2011) (quoting Matter of Conservatorship of Mathews, 633 So.2d 1038, 1039 (Miss.1994)). Decisions related to a guardianship lie largely within the sound discretion of the chancellor, as the ultimate guardian of wards of the court, and those decisions are reviewed for abuse of discretion. See Jackson v. Jackson, 732 So.2d 916, 920–21(5) (Miss.1999); Conservatorship of Harris v. King, 480 So.2d 1131, 1132 (Miss.1985); Neville v. Kelso, 211 So.2d 825, 826 (Miss.1968); Conner v. Polk, 161 Miss. 24, 133 So. 604, 605 (1931). “This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625–26(8) (Miss.2002) (quoting Kilpatrick v. Kilpatrick, 732 So.2d 876, 880(13) (Miss.1999)).I. Whether the chancery court abused its discretion by denying the petition to transfer the guardianship to Louisiana.¶ 8. Natalie argues that the chancery court abused its discretion by denying the transfer of the guardianship to Louisiana based solely on “unwarranted speculation” that Natalie's marriage to Slade would fail. She also asserts that the chancery court abused its discretion by failing to apply a “reasonable legal standard” to the determination of whether to transfer the guardianship. We hold that the chancellor's decision to deny the transfer was based on substantial evidence and, further, the chancellor correctly applied the standard and procedure of Mississippi Code Section 93–13–63 pertaining to transfer of guardianships.¶ 9. Mississippi Code Section 93–13–63 provides that “[i]f a guardian desire to remove the person and personal property of his ward out of this state, on petition and on his making settlement of his guardianship accounts, the court which appointed him may make an order to that effect[.]” Miss.Code Ann. § 93–13–63 (Rev.2013) (emphasis added). According to Section 93–13–63, for the court to allow a guardianship to be moved out of Mississippi, the guardian must: (1) file a petition requesting removal of the guardianship; (2) settle the guardianship accounts; and (3) give a bond with two sureties residing in Mississippi for the full value of the estate to ensure that the guardian will qualify as guardian and file required paperwork in the new jurisdiction. Id. Section 93–13–63 is permissive, not mandatory, and the statute gives the chancellor wide discretion once the three prerequisites are met.3 Id.¶ 10. Natalie asserts that the chancellor's denial of her request to move the guardianship rested solely on concerns about Natalie's new marriage; however, a review of the record and the hearing transcripts indicates otherwise. The chancellor heard testimony from Natalie, the guardian ad litem, and financial advisors regarding the proposed investments and the transfer to Louisiana. The chancellor also had an extensive report from the guardian ad litem and a response to that report from Natalie.¶ 11. Natalie testified and presented evidence that she already had been appointed as Blaine's tutrix (the Louisiana equivalent of a guardian) by a district court in Louisiana and that she had presented a complete inventory of Blaine's estate to that court. Natalie testified that she and Slade were building a house in Louisiana, Blaine was enrolled in school there, Blaine's primary doctors were in Louisiana, she received her bills and financial information in Louisiana, she had a Louisiana driver's license, she was registered to vote there, and her primary doctors and lawyers were in Louisiana. She testified that she intended to raise Blaine in Louisiana and live there for the rest of her life.¶ 12. The guardian ad litem recommended that the transfer be denied. He was concerned that the age of majority in Louisiana is eighteen, while it is twenty-one in Mississippi; thus, in Louisiana, Blaine would receive his money at a younger age, and he may not have the maturity to handle such a substantial sum of money. He was concerned that, at the time of the hearing, Natalie and Blaine had been living in Louisiana only seven months, since Natalie married Slade, and the only reason they moved there was because it was Slade's state of residence. He testified that Natalie and Blaine had strong connections to Amite County. Both Natalie and Blaine had lived in Amite County for their entire lives until the move to Louisiana seven months before. Further, her parents and grandparents lived in Amite County. The guardian ad litem opined that if anything were to go wrong in the marriage, Natalie and Blaine likely would return to Mississippi, where their family lives. He suggested that the guardianship could be transferred at a later date if it was in Blaine's best interest. However, due to the recency of their move to Louisiana, he recommended that the guardianship remain in Mississippi.¶ 13. As discussed above, Natalie attached the letter from her investment advisors to the petition to transfer Blaine's guardianship. The chancellor had asked Natalie to provide the investment information at an earlier hearing after Natalie raised the issue of investing Blaine's settlement funds in non-insured deposit accounts. Natalie had provided the requested information, and the chancellor had appointed a guardian ad litem to consider the investment proposal. However, the petition to transfer asserted that a Louisiana court should be the court to approve the investment plan after the guardianship was transferred. Once the chancellor indicated that she would not transfer the guardianship, the focus of the hearing turned to the investment plan. According to the chancellor's order, through Natalie's testimony, the chancellor became concerned about Natalie's ability to handle the investments, noting that Natalie was a young adult, she had not finished college, and she had no experience with investments. The chancellor wrote that Natalie's “testimony to the Court demonstrated that she lacks the financial sophistication to understand the nature and consequences of the financial decisions she would be called upon to make, if her investment proposal were approved.”¶ 14. At the end of the first hearing, the chancellor said that she intended to deny the transfer. She correctly explained that, under the statute, whether to allow the transfer was entirely within her discretion. The chancellor shared the guardian ad litem's concern about Natalie's new marriage, noting that Natalie and Slade had been brought together through severe tragedy, and that they had known each only a short time, on the heels of that tragedy, before getting married. The chancellor held that in the interest of Blaine's stability, the guardianship should remain in Mississippi.¶ 15. After the second hearing pertaining to the investment proposal, the chancellor entered an order denying Natalie's request to transfer the guardianship and directing that Blaine's settlement proceeds be invested in CDARS. The chancellor only briefly mentioned the denial of the transfer in the order; however, a review of the order, the record, and the hearing transcripts indicates that the chancellor considered many factors, including concerns about the longevity of Natalie's marriage, the short length of time Natalie and Blaine had been in Louisiana compared to how long they had lived in Mississippi before the move, Natalie and Blaine's roots and family connection to Mississippi, Natalie's age and background, Natalie's lack of financial sophistication and understanding of investments, the age of majority in Louisiana, and the best interest of the child. There is nothing arbitrary about the chancellor's order, she did not err as to any factual determinations, and she did not follow an incorrect legal standard.¶ 16. At the core of this issue is the fundamental tenet that “[a] minor under guardianship is a ward of the [c]hancery [c]ourt.” Carpenter, 58 So.3d at 1162(¶ 19) (quoting Mathews, 633 So.2d at 1039). We have written the following about a chancellor's duty to a minor under guardianship:It is the inescapable duty of the said court and or the chancellor to act with constant care and solicitude towards the preservation and protection of the rights of infants and persons non compos mentis. The court will take nothing as confessed against them; will make for them every valuable election; will rescue them from faithless guardians, designing strangers, and even from unnatural parents, and in general will and must take all necessary steps to conserve and protect the best interest of these wards of the court.Id. In refusing to transfer the guardianship, the chancellor reached a carefully considered determination of the issue before her and fulfilled her duty to “act with constant care and solicitude towards the preservation and protection” of Blaine's estate. We cannot find abuse of discretion or error of law on her part.II. Whether the chancery court abused its discretion by requiring the settlement funds to be put into CDs.¶ 17. The chancellor determined that, because Natalie's proposed investment plan would not limit the funds to being placed in FDIC insured accounts from which funds could not be withdrawn without a court order, Mississippi Code Section 93–13–17 required the guardian post a bond in the full amount of the guardianship funds. The chancellor noted, and the parties had conceded, that “such a bond would be extremely difficult to find and that the annual premium would be exorbitant.” Regarding the use of a structured settlement, the chancellor expressed concern that “the minimal savings on income taxes would be offset by the cost of the bond and by the loss of potential increased earnings when the interest rates rise.” As to the proposal to put half of the money into a trust account, the chancellor held that “[a]llowing the funds to be placed outside the control of the [c]ourt, without bond, would be an abuse of the authority of the [c]ourt and neglectful of the duty to the minor.” The chancellor ordered Natalie to deposit the funds in an FDIC insured bank account in the state of Mississippi and to “avail herself of the benefits of investing through the CDARS plan to maximize protection of Blaine's assets and minimize her record keeping.”¶ 18. Natalie asserts that the trial court erred in requiring that the entirety of Blaine's settlement funds be placed into CDs. She argues that doing so violates both the reasonably prudent investor standard that governs fiduciaries4 and the duty of a guardian to improve a ward's estate.5 She claims that interest rates and other considerations related to investment in CDs effectively garner a negative return on the investment. She also argues that bond requirements for the investments should be waived because, if they are not, “[Section] 93–13–17 effectively prohibits a guardian from investing in any investment other than a fully insured bank account when a ward's assets are substantial—because either the guardian could not obtain a bond, or could not afford one .” She asserts that such a requirement conflicts with the prudent investment statute.¶ 19. The plain language of the guardianship statutes unequivocally requires a bond to be posted if the ward's estate is placed in non-insured investments:Every guardian, before he shall have authority to act, shall, unless security be dispensed with by will or writing or as hereinafter provided, enter into bond payable to the state, in such penalty and with such sureties as the court may require;․A guardian need not enter into bond, however, as to such part of the assets of the ward's estate as may, pursuant to an order of the court in its discretion, be deposited in any one or more banking corporations, building and loan associations or savings and loan associations in this state so long as such deposits are fully insured, such deposits there to remain until the further order of the court, and a certified copy of the order for deposit having been furnished the depository or depositories and its receipt acknowledged.Miss.Code Ann. § 93–13–17 (Rev.2013). While we understand the desire to diversify Blaine's money and the difficulties surrounding obtaining such a large bond, the plain language of the statute simply tied the chancellor's hands. The testimony was that, for such a large amount, CDARS was the only practical manner in which the statute could be complied with—the only way that the funds could be deemed placed in Mississippi institutions and be fully insured such that the guardian's bond could be waived. Under Section 93–13–17, the chancellor had no option but to place the investment in a fully insured program such as CDARS, or to require that Natalie post a bond. Thus, the chancellor did not err in requiring that the entire settlement be put into CDARS.¶ 20. The chancellor heard extensive testimony on all the investment options, asked questions regarding the proposed investment strategies, requested additional research on various investment strategies, and issued a lengthy and detailed judgment explaining her decision on the investment of the ward's settlement. In her order, the chancellor noted the guardian ad litem's “serious reservations” about the proposed investment of Blaine's funds, such as “the fluctuating stability of the economy, the recent failures of large investment companies ․, the historically low interest rates [that] would affect the return on investment rate of any structured annuity, and the requirement that the guardianship assets be bonded for moneys not held in FDIC insured accounts.” The chancellor cited the court's “duty to wards under its protection to ensure the proper management of the ward's estate,” and it was evident throughout the proceedings that her primary concern was Blaine's best interest. The record is clear that the chancellor very carefully considered all the options and made lengthy, detailed, and thorough findings of fact and conclusions of law. Even had the statute not tied the chancellor's hands, we would not find an abuse of discretion under such a circumstance.Conclusion¶ 21. The chancery court did not abuse its discretion in denying the petition to transfer the guardianship from Mississippi to Louisiana and did not err in holding that all of Blaine's settlement funds should be placed into CDARS. Accordingly, we affirm the decision of the Amite County Chancery Court.¶ 22. AFFIRMED.¶ 23. I agree with the majority that the trial court did not err in its ruling on investing the ward's funds. I disagree with the majority's holding that the chancellor properly refused to transfer the guardianship to Louisiana, because the chancellor failed to adhere to any recognized legal standard in making her decision to determine if the guardianship should be transferred to Louisiana, and thus, I believe that she abused her discretion, and therefore dissent.¶ 24. The majority claims that the chancellor based her decisions upon facts in addition to her belief that the marriage would fail. The chancellor's full ruling on that issue is as follows:․ I am going to rule on issue [sic], and I researched this issue heavily. Whether this guardianship is transferred to another jurisdiction is a matter that is entirely within the discretion of the Court by statute and otherwise. Guardianships are entirely statutory matters, therefore, will be governed by the statute. And since the statute gives this Court the discretion, I am going to rule on that.I am not transferring this guardianship at this point and this time of this child's life to another state.Now, if you want me to make the specific findings as to why the Court is not going to do that, it doesn't matter if the guardian ad litem asks that it be transferred. It is not going to be transferred.This Court has approved a Memorandum of Understanding, and has through this wrangling and this child's assets remain under the control of some New York escrow account that is dissipating his assets, not growing his assets, and it is through this Court's authority that those funds are there and those funds are going to be dispersed from that account through this Court's authority.Now, the only tie that this child has to Louisiana is in an entirely mobile society is where his mother currently hangs her hat. His mother who testified that she underwent unimaginable tragedy in the loss of her husband less than two years ago, that less than one year ago after having lived her entire life in Amite County, Mississippi, she met another gentlemen [sic] who had two unspeakable tragedies in his life. His two best friends have been killed. One of them with her husband, and one of them was the brother of another of the widows through which Ms. Deason lost Mr. Roshto, her then husband.I hope and pray that her relationship is a long and healthy one. Statistically, having been brought together through this tragedy, having known Mr. Deason for such a short period of time, on the heels of her trauma, the Court would be hesitant to believe that this child will continue to reside in the state of Louisiana until his majority is removed.Therefore, at this time in interest of promoting this child's stability, this Court is going to rule that this guardianship is and will remain a Mississippi guardianship, and that's going to be the order of the Court. And I don't want to hear anything else about it.(Emphasis added.) A reading of that ruling denying the transfer indicates that the denial was predicated solely upon the chancellor's belief that the mother's marriage was not stable and was likely to fail. It is significant that there is nothing in the record which calls into question the stability of the mother's marriage.¶ 25. The court declined to transfer the guardianship to Louisiana, and based its decision on assumptions, not facts in the record, about Natalie's marriage, as evinced by its bench ruling denying the transfer, set out above in its entirety. The court noted that the sole basis of its decision was its belief that the marriage was “statistically” likely to fail. The court did not point to what “statistics” it was referring, nor did any of the parties place any such “statistics” in the record as evidence.6 Essentially, the court declined to transfer the guardianship because it expressed doubt that Natalie's second marriage would last, and also appeared to assume that if it did not last, Natalie would not remain in Louisiana. This decision is not supported by or based upon any evidence placed before the court, as the only evidence before the court was that the marriage was a good one and that Natalie was stable and not prone to moving often. Indeed, this was the first major move Natalie had made in her entire life.¶ 26. Mississippi Code Section 93–13–63 provides that “[i]f a guardian desire to remove the person and personal property of his ward out of this state, on petition and on his making settlement of his guardianship accounts, the court which appointed him may make an order to that effect[.]” Miss.Code Ann. § 93–13–63 (Rev.2013) (emphasis added).7 ¶ 27. Under an abuse-of-discretion standard, this Court must first ask whether the court below applied the correct legal standard. Burkett v. Burkett, 537 So.2d 443, 446 (Miss.1989); Plaxico v. Michael, 735 So.2d 1036, 1038 (Miss.1999). If, and only if, the lower court applied the correct legal standard, does this Court determine whether the lower court's decision was one of the several reasonable ones it could have made. Burkett, 537 So.2d at 446; Plaxico, 735 So.2d at 1038–39. “The trial court's decision will be affirmed unless there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.” Plaxico, 735 So.2d at 1039. This, of course, presupposes that the trial court weighed the relevant factors.¶ 28. In this case, the chancellor did not apply any legal standard, much less the “correct” one. While neither the Legislature nor this Court has outlined the relevant factors that a chancellor is to weigh in determining whether to transfer a guardianship, that does not give the chancellor license to apply no legal standard.8 In a factually similar case out of the Supreme Court of New York, the court stated:Discretion is not the judge's sense of moral right; neither is it his sense of what is just. He is not clothed with a dispensing power or privilege to exercise his individual notions of abstract justice. With him there is no scope for judicial caprice. Principles of law are to be ascertained and followed. Justice is administered in the courts on settled and fixed principles. It does not vary “like the Chancellor's foot.” The rights of litigants do not rest in the discretion or grace of the judge. In all cases that come under his consideration a judge must act with discretion and discrimination and give weight to every circumstance bearing on the question to be adjudicated. He is not at liberty in determining personal or property rights to act at his own discretion unrestrained by the legal and equitable rules governing those rights.Matter of Bond, 251 A.D. 651, 654 (N.Y.App.Div.1937).¶ 29. Instead of formulating a legal standard for her decision, the court appeared to rely merely on “statistics” not found in the evidence, and unfounded predictions for the future. Not only does the court's decision lack a founding in any legal standard, it is not based on any evidence in the record. Furthermore, the trial court failed in its obligation to provide definitive, rather than gossamer, findings, so that this Court may adequately review its decision. Thus, the combination of the court's failure to apply a legal standard, its reliance on speculative “statistics” not in evidence, and its failure to make specific findings give us no discernible standard that it applied to this case, constituting an abuse of discretion.¶ 30. Mississippi law does not provide any guidance to assist a court in determining whether a guardianship should be transferred. Natalie suggests using a standard such as that used in the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (Uniform Adult Guardianship Act). The Uniform Adult Guardianship Act provides that a court should enter a provisional order transferring a guardianship to another state if the court is satisfied that the other state will accept the guardianship and if:1) the ward is physically present in or is reasonably expected to move permanently to the other state;2) an objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer is contrary to the interests of the ward; and3) plans for the care and services for the ward in the other state are reasonable and sufficient.¶ 31. In a case in which Wisconsin was asked to accept the guardianship of an incompetent adult from Illinois, the Wisconsin Supreme Court generally opined on interstate guardianship transfers.9 In the matter of the Guardianship of Jane E.P., 700 N.W.2d 863 (Wis.2005). Although the issue of transferring a guardianship out of state was not before it, the court took the opportunity to set forth standards for such, stating that the “standards will protect the integrity of the original court's determination of what is in the best interests of the ward.” Id. at 865. The court noted that “[i]n many simple cases the conclusion is obvious: it is in the best interest of the ward to be near those who will love, care for, and comfort the ward.” Id. at 867. The court leaned heavily on the National Probate Court Standards (created by the Commission on National Probate Court Standards and Advisory Committee on Interstate Guardianships, a Project of the National College of Probate Judges and the National Center for State Courts). Id. at 872. Central to the National Probate Court Standards “is the concept of ‘portability’—that is, that a guardianship established in one state should be able to be ‘exported’ or ‘imported’ from one state to another absent a showing of abuse of the guardianship.” National Probate Court Standard 3.4, available at http:/ / www.ncpj.org/images/stories/ pdfs/National_Probate_Court_Standards.pdf (last visited March 25, 2014); see also Jane E.P., 700 N.W.2d at 872. The intent “is to facilitate, and not to impede unnecessarily, the movement of a guardianship across state lines, and to speed decisions and case processing by the court while protecting, even furthering, the interests of the respondent and other interested persons.” National Probate Court Standard 3.4; see also Jane E.P., 700 N.W.2d at 872. “A guardianship is not intended to restrict freedom unreasonably or to limit the flexibility, choices and convenience available to the respondent. It should not unnecessarily limit choices and preferences.” National Probate Court Standard 3.4; see also Jane E.P., 700 N.W.2d at 872. However, the standards do note the potential problem of forum shopping for more advantageous guardianship or other related laws, such as Medicaid or termination of life support laws. National Probate Court Standard 3 .4. The standards first encourage communication and cooperation between courts in different jurisdictions to assist in resolving guardianship issues. National Probate Court Standard 3.4.1; see also Jane E.P., 700 N.W.2d at 872. The standards then adopt a very similar standard for transferring guardianships as does the Uniform Adult Guardianship Act. National Probate Court Standard 3.4.3. It states:Probate courts may grant a petition to transfer a guardianship or conservatorship when:(1) The respondent is physically present or is reasonably expected to move permanently to the other state or has a significant connection to the other state.(2) An objection to the transfer has not been made or has been denied.(3) Plans for the care of and services for the respondent and/or management of the respondent's property in the other state are reasonable and sufficient.(4) The probate is satisfied that the guardianship/conservatorship will be accepted by the probate court in the other state.National Probate Court Standard 3.4.3. The intent of this standard “is to facilitate the transfer of a guardianship and/or conservatorship to another state in cases in which the probate court is satisfied that the guardianship/conservatorship is valid and that the guardian/conservator has performed his or her duties properly in the interests of the respondent for the duration of his or her appointment.” National Probate Court Standard 3.4.3 commentary (emphasis added). The standard assumes “that most guardians/conservators are acting in the interest of the respondent and that the notice and reporting requirements, and the opportunity to bring objections to the transfer to the attention of the court, are sufficient checks on the appropriateness of the transfer of the guardianship.” Id.¶ 32. The court in Matter of Bond did not set a standard for determining when transfer of a guardianship is appropriate, but it did rely heavily on the ward's out-of-state residence in deciding that the lower court abused its discretion by failing to transfer the guardianship. Matter of Bond, 251 A.D. at 654. The court noted that the ward was a citizen and resident of the “sister state” and that her mother had been appointed as guardian in a court of the sister state, where both mother and child lived. Id. The court found that[t]here is eminent propriety in having the personal property of a ward in the same jurisdiction in which such ward has her legal residence. It will, as a general rule, be better cared for and administered at that place. We may confidently assume that the Superior Court of California will jealously guard this infant's estate against unwise or unnecessary dissipation. That court is much more convenient for the administration of the trust․No plausible reason is suggested why the fund should not be transferred. We should not charge ourselves with the administration of the portion of the estate that is here where the proof conclusively shows the regularity of petitioner's appointment by a court of competent jurisdiction in the state where the ward resides and where the evidence convincingly shows the need of a change. There is not a scintilla of evidence to indicate that the removal of the fund would be inimical to the infant's interests. In fact, we may judicially notice that the estate would suffer financial loss by dual guardianship.Id. at 654–55.¶ 33. This Court should set forth factors that a chancellor may consider in making a determination of whether to transfer a guardianship to another state. I would propose the following standards be used:10 1) Whether the ward is a resident of, or is reasonably expected to move permanently to, the other state;11 2) Whether any objection to the transfer exists, and if so, whether the objector establishes that the transfer will be contrary to the best interests of the ward;3) Whether the plans for care and services for the ward are reasonable and sufficient; 124) Whether the substantial rights of creditors and/or claimants in this state will be materially impaired by the transfer;5) Whether evidence exists that the requested transfer is for the primary purpose of forum-shopping; 136) Whether other facts in evidence suggest that the requested removal is for improper reasons or is otherwise contrary to the best interests of the ward.This Court's review would benefit from a chancellor analyzing and weighing each factor applicable to the case before him or her and determining whether to transfer the guardianship. However, I emphasize that we should not create an all-inclusive or exclusive list, nor a checklist; certain findings regarding any factor or factors should not mandate a certain result. These considerations would simply provide guidance to chancellors as they exercise their discretion, as well as provide predictability to litigants.¶ 34. I would reverse the trial court's decision to not transfer the guardianship because the trial court abused its discretion by failing to employ any legal standard, by failing to provide detailed findings, and by relying on unknown statistics not in evidence. I believe this Court should give chancery courts guidance as to some legal standard they should employ in determining whether to transfer a guardianship, and I would therefore remand the case for a determination by the trial court on the petition to transfer, using the applicable factors outlined, with the parties being given a chance to present evidence on each applicable factor. I therefore dissent from the portion of the majority opinion that affirms the trial court's denial of the motion to transfer.¶ 35. Because I agree with the majority that the trial court did not err in requiring that the entire settlement be put into CDARS, I concur with the majority opinion to the extent it affirms the chancery court on the investment issue.FOOTNOTES1. Natalie met Slade in September 2010, through another widow who lost her husband in the Deepwater Horizon explosion. Slade had been good friends with that widow's husband as well as the widow's brother, who was killed in a car accident in September 2010.2. Through CDARS, someone with large sums of money can deposit and manage CDs through only one bank. That bank distributes the money among other banks for placement in CDs, ensuring that less than $250,000 goes to each bank. The depositor works only with the “base” bank, but his entire sum of money is FDIC insured because it is properly distributed among various financial institutions.3. Natalie suggests that the Court adopt the Uniform Adult Guardianship Act. However, the Mississippi Constitution empowers the Mississippi Legislature, not the Court, to enact legislation. See Miss. Const. art 1, § 2. See also Jenkins v. Borodofsky, 211 So.2d 874, 876 (Miss.1968) (“The enactment, modification[,] or repeal of laws, wise or foolish, is a problem for the legislature of this state. This Court has no authority in this regard.”). The dissent suggests that the Court “set forth factors that a chancellor may consider in making a determination of whether to transfer a guardianship to another state.” (Diss.Op.33). We decline to do so because we are not without a standard to follow. At this time, the standard is Mississippi Code Section 93–13–63, which provides the prerequisites that must be met before a transfer will be considered. That section gives the chancellor discretion in determining whether to allow the transfer once the prerequisites have been met.4. See Miss.Code Ann. § 91–13–3 (Rev.2013).5. See Miss.Code Ann. § 93–13–38(2) (Rev.2013).6. The court's judgment on the issue did not provide any further explication. It merely stated that “[t]he Court took the matter up on that day, ruling from the bench that the request to transfer the matter to Louisiana was denied.”7. The second part of the statute requires that the guardian post a bond conditioned on him qualifying as guardian in the state to which he intends to remove the ward or property, and on filing a complete inventory of the ward's property and effects with that court. Miss.Code Ann. § 93–13–63. While Natalie did not post such a bond, it is undisputed that the appropriate Louisiana court has already appointed her Blaine's tutrix (the Louisiana equivalent of a guardian) and that she has already filed a complete inventory of Blaine's assets with that court. Thus, the conditions of the statute in that regard have been met, obviating the need for a bond to be posted until she is appointed guardian in the other state and files an inventory there.8. It would be prudent for the Legislature to adopt standards regarding interstate guardianships, as it is apt to arise more often in our ever-increasingly mobile society. Absent legislative guidance, this Court should engage in our duty to interpret the statute as written and set forth guidance for the lower courts in exercising their discretion, as the lower courts cannot operate in a vacuum. See, e.g., Parker v. State, 119 So.3d 987, 998, 998 n. 16 (Miss.2013).9. The Wisconsin legislature had not addressed the issue, and the court “strongly encouraged” it to do so. Jane E.P., 700 N.W.2d at 870. “However, in the absence of legislative guidance, [the court] set[s] forth standards for Wisconsin courts to follow when confronting cases associated with the interstate transfer of guardianships.” Id.10. Not all factors would be applicable to every case, but given that both minor children and adult wards are covered by this statute, a wide range of factors needs to be considered. I do not suggest that we mandate that chancery courts examine these factors in using their discretion. I merely suggest that some legal standard would be helpful to courts and would provide predictability to residents, and I suggest that these particular factors may help guide a court's decision. However, a chancery court would be free to use some, or none, of these standards, so long as it uses some legal standard.11. I note that the ward's state of residence is often the most convenient, least expensive (for the estate) and best place for a guardianship to be located, and that courts should presume that, absent proof to the contrary, courts of a sister state will protect the ward's interests and estate just as zealously as would a court in this state.12. This factor would be more important in cases in which the court had a heavy hand in the ward's custody/person. In a case such as the one before us today, Natalie's parental rights were not extinguished or restricted simply because Blaine received a substantial amount of money.13. Principles of comity prevent us from making assumptions that the courts of our sister states, such as the court in La Salle Parish, Louisiana, are irrational or incompetent. Furthermore, substantive laws will always vary somewhat from state to state. Only upon evidence that a court is incompetent, or upon evidence that the primary purpose of the proposed transfer is forum-shopping, would this factor alone generally justify denying a proposed transfer.COLEMAN, Justice, for the Court:
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, AND PIERCE, JJ., CONCUR. KING, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J.
KING, JUSTICE, Concurring In Part And Dissenting In Part:CHANDLER, J., JOINS THIS OPINION.
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2016-50/3656/en_head.json.gz/18166
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| ABRIAN DE LANO v. UNITED STATES
ABRIAN DE LANO v. UNITED STATES
UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA
Benita Abrian vda DE LANO, Plaintiff,
The opinion of the court was delivered by: MCGUIRE
Plaintiff's motion for summary judgment granted. This is an action brought for the resumption of insurance benefits payable by the Veterans Administration pursuant to the National Service Life Insurance Act, 38 U.S.C.A. § 801 et seq. (1954 ed.). Inter alia, the pertinent section of the statute provides: '* * * that payments hereunder shall be made only to the following beneficiaries and in the order named -- (A) to the widow or widower of the insured, if living and while unremarried; * * *' (38 U.S.C.A. § 802(d)(2). The plaintiff is the widow of one Roque Lano, formerly a member of the Philippine Scouts, who was killed in action at Bataan early in 1942. At the termination of the war, she applied for and was granted the benefits alluded to above. However, as of May 1, 1958, these payments were ordered discontinued by competent authority because, in its opinion, the plaintiff was no longer the unremarried widow of the deceased serviceman. Essentially, the reason advanced for the discontinuation of the payments was based on the plaintiff's admission of living with another man as husband and wife since November 1956, and to having borne his child in August 1957. An appeal to the Veterans Administration was duly noted, and on July 15, 1958, the Board of Veterans' Appeals denied the appeal. This action followed. The right to the resumption of payments admittedly turns on the meaning of the word 'unremarried' as used in the statute. Common-law marriage, as such, is not recognized in the Philippines; that is admitted. And the law of that Republic governs in the instant situation. Furthermore, the Government admits that cohabitation alone is not proof of marriage. However, it does contend that in the Philippines there arises a legal presumption that a man and woman living together as husband and wife have entered into a lawful marriage, (Sison v. Ambalada, 30 Phil. 118 (1915)) and that before the plaintiff can prevail she must overcome this presumption. Assuming this to be an accurate statement of the law, the Court concludes in the circumstances that the plaintiff has met the challenge of this legal presumption because the presumption is not well founded. A presumption will not be construed in such a manner as to extend its application beyond the realm of reasonable probability or certitude. Fresh v. Gilson, 1842, 16 Pet. 327, 41 U.S. 327, 10 L. Ed. 982. Regardless of the fact that the plaintiff admitted in a sworn statement before the Veterans Administration field examiner (Exhibit A) that she and one Jose Solivan have lived together as husband and wife continuously since November 1956, and as a result of this relationship an infant was born, it is well to observe that there is more in this statement than what is in effect an admission of illicit behavior on the part of the plaintiff. She categorically denies any marriage ceremony, either canonical or civil, to Solivan. The alleged husband also denies any ceremonial union. Furthermore, the existence of any understanding or agreement of a ceremonial marriage is strenuously protested. The Court is of the opinion that the plaintiff has best described the nature of this relationship: 'We decided to live as husband and wife even without getting married.' This sort of relationship does not constitute a lawful marriage in the Philippines. As conceded above, the Philippines have not and do not recognize common-law marriages. In the Philippine Digest (1927) Vol. 4, p. 2991, 'Common Law Marriages', the following statement is made: '32. No common law marriage has ever been recognized in the Philippines. Under Spanish law no valid marriage could exist unless some ecclesiastical or civil functionary intervened in its celebration. * * *' Nevertheless, the Government relies strongly on Sison v. Ambalada, supra: that there is a legal presumption that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage. Code of Civil Procedure, the Philippines, Sec. 334, No. 28. But it must be noted, however, that in the Sison case there was the necessary qualification to the legal presumption of lawful marriage, namely, that this man and woman were 'united in lawful canonical marriage.'
This presumption the defendant in that case was unable to overcome, notwithstanding the absence of the marriage certificate, because there was an overwhelming preponderance of evidence to support the legal presumption of a lawful canonical marriage. Since the Government in the instant cause has introduced no evidence of either a canonical or a civil marriage, as was introduced in the Sison case, then the legal presumption of lawful marriage cannot be well taken. Certainly the Government does not suggest that the Court make a moral judgment as to the propriety of the plaintiff's conduct. 'Plaintiff's right to recover is dependent upon her legal status, not upon her morals, her worthiness, nor her social standing. The Act of Congress under which the action is maintained contains no limitations of this character.' Rittgers v. United States, 8 Cir., 1946, 154 F.2d 768, 772. The Court concludes that according to the law of the Philippines, the plaintiff is in fact the 'unremarried' widow of the deceased serviceman. Order accordingly. Our website includes the main text of the court's opinion but does not include the
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2016-50/3656/en_head.json.gz/18274
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From the Life Files
So about 30 years ago, my since-retired colleague wrote a policy on a 30 year old client (whom we'll call Gene). Gene's wife was named as the beneficiary, and all was well.A few years - and two children - later, Gene and his wife divorced, and Gene changed the beneficiary of his policy to his brother.Problem is, he never told his brother (or his kids) that he was doing so. Recently, Gene passed away, and his ex-wife called me to inquire about the policy. I called the home office and confirmed that a) he did, in fact, have a policy (and it was in force) and b) his brother was the beneficiary (again, news to all of us).Fortunately, the brother lives relatively close by, and was in town attending to the funeral arrangements and such. I was able to connect with him, and we met yesterday to complete the claims paperwork (we're still awaiting the official death certificate, without which the claim can't be paid).That's when I learned that not only did Gene never tell his brother about the policy, but that he died without a will (aka intestate for all you legal-beagles). The brother had no idea what Gene wanted to do with the proceeds of the policy (well, the balance after final expenses), nor of his house or other belongings. He's decided that he'll just divvy up the balance with his nieces once all the (modest) estate costs are settled.This is just so sad: Gene died alone, and never made his wishes known to those that were (ostensibly) closest to him. I suppose there's a lesson here, somewhere, but danged if I know what it is. Any suggestions?
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2016-50/3656/en_head.json.gz/18287
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Home / Modern-feminist / Article
Portrait of a Modern Feminist: Darcy Olsen
Charlotte Hays
By Charlotte Hays
For conservatives down in the dumps over the seemingly inexorable expansion of the power of the federal government, Darcy Olsen brings a hopeful message: the battle against federal encroachment can be fought and won in the states. “We can use state constitutions to fight back against what is happening in Washington,” Olsen says.
Olsen is president and CEO of the Goldwater Institute in Phoenix, Arizona. A recent state-level victory illustrates Olsen’s point: despite the dire warnings of labor lawyers, who said that Goldwater didn’t have a chance against powerful labor unions, the institute championed the Save Our Secret Ballot amendment to the Arizona state-constitution. It guaranteed the right of the secret ballot for individuals voting whether or not to have a union shop. The amendment was adopted in 2010.
But this wasn’t just an Arizona triumph. Eight other states have followed suit and adopted similar amendments to their state constitutions. “The Founders intended the state constitutions to be the primary line of defense against big government,” says Olsen, “not the backup but the primary line of defense.
“State constitutions are packed with provisions for liberty,” she continues, “and a lot of conservatives will be thrilled to learn from this conversation that the U.S. Constitution is a floor for liberty, not the ceiling. So, using our state constitutions, we can provide greater protections for religious freedom, free speech, freedom of the press, fiscal issues, privacy, health issues, and labor issues.”
The Goldwater Institute was founded in 1988, with the blessings of the late senator, presidential candidate and conservative standard bearer Barry Goldwater. George Will has hailed the Goldwater Institute for its outstanding leadership in what the Pulitzer Prize-winning columnist called “the liberty business.” Steve Forbes of Forbes magazine has called Goldwater “a model for others around the country fighting for freedom.” More colloquially, the successes of the institute’s legal team led Phoenix magazine to dub Goldwater “a ninja-lawyer squad.” Olsen, who has been described as a visionary, became head of Goldwater in 2001.
It is fair to say that Ms. Olsen, 41, has a novel resume for the CEO of a free-market organization that is accustomed to winning tough battles--or "duking it out," as Olsen puts it--in the the courts. Olsen worked as a drug counselor for the Coalition for the Homeless, an advocacy organization in Washington, D.C., while working for her bachelor’s degree from Georgetown University’s Edmund A. Walsh School of Foreign Service. She has a master’s degree in international education from New York University.
Nor surprisingly for a former drug counselor, Olsen says she has always had “a liberal heart.” Olsen's liberal heart already was evident when, the future Goldwater CEO, aged 10, wrote a letter to President Ronald Reagan. Homelessness was a big issue and Olsen, traveling across the Midwest with her family, saw open space and what looked like a way to solve the problem of homelessness. In her letter to Reagan, she suggested that the government build houses for the homeless in the Midwest, an expensive undertaking, to say the least.
Like most ten-year-olds, Olsen had not realized that “to give money [for such projects], you either have to create money or take money from somebody.” The college-aged Olsen, an ace debater, still had a liberal heart but she found herself being bested in arguments by libertarian friends. “It’s not my debating skills," Olsen thought. "They must know something I don’t know.” Open minded, she took a course from Intercollegiate Studies Institute (ISI) that introduced her to free-market economists Friedrich Hayek, Frederic Bastiat, and Ludwig von Mises and proved an intellectual milestone in her development.
Olsen then took an unusual route to becoming the leader of an important free-market institution. After a stint as a copyeditor for a university in Utah, Olsen joined the Cato Institute as an editor but soon became a policy analyst. The word "meteoric" might apply to Olsen's rise in the free-market, libertarian world. When she was hired by Goldwater, she replaced Jeff Flake, who resigned to run for Congress. With Olsen at the helm, the Goldwater Institute has continued to rack up important victories against government overreach. She also has an eye for talent. Olsen hired Clint Bolick, the prominent libertarian lawyer, who last year joked to Townhall, “I get paid to sue government bureaucrats.”
As might be expected for an organization led by a woman with a degree in international education, the Goldwater Institute has also been extremely creative in the field of education. The institute has pioneered education savings accounts that are similar to health savings accounts. The program makes available more funding to be used at the discretion of the parents. If all the money isn’t spend it a year it can be carried over and ultimately used for college. That would give the schools incentive not to raise their tuition fees just because money in available. The governor of Arizona signed the Education Savings Accounts bill into law two years ago and expanded accounts this year. ?
The Goldwater Institute currently is engaged in a lawsuit challenging the constitutionality of the Independent Payment Advisory Board (IPAB), an unelected board included in the ObamaCare law that will have unprecedented power. The IPAB will ration care and set prices. Another state-initiative that could have a profound impact on a national level is the Goldwater Institute’s Compact for America, a creative way to fix federal debt. The Compact aims to enact a federal Balanced Budget Amendment through state legislatures. “If approved by 38 states, the Compact would require the federal government to obtain the approval of the majority of legislatures to green light any increase above an initial debt limit. In other words, 26 states would have to cosign for the federal government’s credit card,” the Goldwater Institute explained in a press release. “The Compact doesn’t wait around on Washington to initiate balanced budget amendment,” Goldwater’s Nick Dranias said in a speech in Florida.
If Olsen’s belief in the power of state initiatives to curb federal expansion gives beleaguered conservatives and libertarians hope, her private life gives hope to women who want both careers and children. Olsen is the adoptive mother of two small children whom she met when she became their foster mother. “My baby girl will turn two on October 3,” she says, “and that was the same day that the court gave me to finalize the adoption of my little boy. They are six months apart, so they are basically little twins.”
It came to Olsen that she wanted to become a foster mother while in prayer. Originally, Olsen intended to foster teen-aged girls, but the authorities ruled that her loft-style house didn’t have enough bedroom space for teen-aged children. She received one of her children when the baby was two weeks old and the other as a thirty-six-hours-old newborn. It dawned on her that, if the children became available for adoption, she wanted them to stay with her. “It’s the greatest decision I never made,” she jokes. Olsen has not ruled out the possibility of enlarging the family. She will foster again.
She says that having kids has made her more aware of how work schedules affect families. “Libertarians or conservatives, we often talk about how important family is and then work people to death. It’s important that we practice what we preach. You can be a brilliant leader and run the Cub Scouts at the same time,” she says. She is temporarily doing more work from home, but that will change when the children are old enough for school.
When Olsen adopted her children, she called her senior staff together and said that, if anybody felt she was not available enough because of her maternal duties, to let her know—even anonymously—and she would gladly step into a different, lower-paying position at the Goldwater Institute. So far, we understand, there haven’t been complaints—anonymously or otherwise. Given Olsen’s outstanding record, we’re not surprised.
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Not Your Average Camping Trip?
Susan's Powell's family [the young woman who went missing on December 7th] does not believe their son-in-law, Josh Powell, is capable of having anything to do with his wife's sudden disappearance. Her father has gone so far as to ask the public to stop pointing fingers at his son-in-law, saying "I don't see him capable of harming her."
In this case, as in the majority of situations where "suddenly" a wife and mother is gone, the person with whom the victim is in a relationship is always conveniently not around when the person has gone missing. Where else would a mother of 2 young sons go at 12:30 a.m. when she had to be at work the following day? It is also not unusual for friends or relatives to not know if there are marital problems, as is in this case.
If we look at case it begins with a disturbing red flag. Josh Powell on a work night has a light bulb moment and decides to go camping?
In the middle of the night Josh Powell takes the two children, ages 2 and 4, from their comfy warm beds on a camping trip in freezing conditions? What parent in their right mind does this? Instead of asking him about the camping trip, both the children should be tested for alcohol and or drugs in their systems. It does not take much to give a young child something, enough to be out of it for the night, it could be as simple as Nyquil cold medicine, then wake up to find they [the boys] who, by the way, are barely able to form intelligent sentences, rise and shine to see daddy's happy face.
[Susan Powell, 28, West valley City, Utah]
The facts: Susan Powell has been missing for a week. She did not take her purse or cell phone.A plea from a family member for her safe return HERE
Police are asking for the public's help. [Perhaps they should consider giving the make and model of Josh Powell's van -just in case he stopped for gas or someone saw the van pull off a road or parked near a river. Or maybe he and the kids ordered from a drive-thru window or had breakfast at McDonalds.]
Alice Morrin Homicide,
Children Domestic Violence,
Geraldo at Large,
Heather Malloy,
Lisa Stebic,
Nancy Grace,
Prevention,
Renee Pernice,
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| R.L. Guttridge Inc. v. Wean
R.L. Guttridge Inc. v. Wean
R.L. GUTTRIDGE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF,v.LLOYD WEAN, DEFENDANT
Jayne, J.s.c.
[8 NJSuper Page 451]
This action relates to the basic validity and equitable enforceability of a restrictive covenant embodied in and ancillary to a contract of employment entered into by the parties on November 27, 1948.
The negative covenant to which the defendant and a fellow employee subscribed reads as follows:
"3. Said employees do further agree that upon the termination of their said employment that they will not directly or indirectly, as [8 NJSuper Page 452]
agent, servant, employee or representative, be connected with or concerned in any business or employment either as agent, servant, employee, stockholder or representative in any business which engages in the purchase or sale of suet, fats, bones, grease, skins or hides, or any business which renders animal by-products making tallow or cracklings, for a period of eighteen months after said termination with the employer herein, said territory restricted to said employees in which they hereby covenant not to engage in competition with the employer after the termination of said employment shall be the State of New Jersey and within a radius of one hundred miles of the City of Scranton, Pennsylvania, said territory being recognized by the parties hereto as being that which is presently covered by the employer herein;
"4. Nothing herein contained shall be construed to prevent the employer from terminating the employment of the employees at any time nor shall this agreement be construed from preventing, in any way, the employees on their own behalf terminating said employment with the employer. The purpose and intent of the parties hereto is to prevent said employees, after their termination of employment with the present employer, R.L. GUTTRIDGE, INC., from entering into a competing business, either directly or indirectly, within the territory covered by said employer."
I stated in my decision in Silbros, Inc. v. Solomon , 139 N.J. Eq. 528 (Ch. 1947), in which a copious citation of pertinent authorities may be found, that neither public policy nor the judicial decisions of recent years have disapproved of contracts in restraint of trade between employer and employee where the restraint is reasonably necessary for the protection of the business of the employer and not unreasonably restrictive in point of time or territory upon the rights of the employee. See, also, Pilgrim Coat, Apron, &c., Inc. v. Krzywulak , 141 N.J. Eq. 212 (Ch. 1948); Schlossbach v. Francis-Smith , 3 N.J. Super. 368 (Ch. 1949).
The present case is submitted to me for determination by consent of counsel upon the consideration of the contract, the admissions contained in the pretrial order, and the transcript of the testimony of the defendant taken pursuant to Rules 3:29 and 3:30.
The employment of the defendant by the plaintiff originated on December 8, 1947. The plaintiff is engaged in the business of purchasing meat scraps, such as fats, suet, bones, [8 NJSuper Page 453]
hides, skins, and kindred products to be thereafter processed. The defendant and the other subscriber to the contract, and perhaps others, were employed to solicit customers from whom such materials could be regularly obtained.
In November, 1948, experience caused the plaintiff to recognize the wisdom of protecting its business and its commercial relationship with the sources of the desired materials by restricting its field representatives such as the defendant from impulsively terminating their employment and immediately exerting their efforts competitively.
The plaintiff was then at liberty to discharge the defendant and his associate at will and informed them that their employment would be continued if they chose to accept it subject to the restrictive covenant.
The defendant frankly acknowledges that he read, discussed, and fully understood the new agreement, that he executed it voluntarily, that on October 12, 1949, he terminated his employment, that he has since engaged to perform precisely similar services for The Theobold Industries, a competitor of the plaintiff, in the same territory in New Jersey, and that he has interviewed on behalf of his present employer some of the customers of the plaintiff and endeavored to capture them for his present employer.
The controversial issue seems therefore to concentrate principally upon the reasonableness of the covenant.
Anent the time during which the covenant is to be operative, the period of eighteen months does not appear to be manifestly unreasonable. Cf. Sarco Co. of N.J. v. Gulliver , 3 N.J. Misc. 641, 645 (Ch. 1925); affirmed, 99 N.J. Eq. 432 (E. & A. 1926); Credit Rating Service, Inc. v. Charlesworth , 126 N.J. Eq. 360, 366 (Ch. 1939).
By the express terms of the agreement the defendant promised that he would not, directly or indirectly, engage in a competing business within "the State of New Jersey and within a radius of one hundred miles of the City of Scranton, Pennsylvania." It is significant to observe in the contract the acknowledgment that "said territory being (is) recognized [8 NJSuper Page 454]
by the parties hereto as being that which is presently covered by the employer herein."
Assuredly, the restriction upon the employee should not be unduly oppressive and outstretch territorially the area reasonably to be embraced for the protection of the employer. Except the admission of the defendant embodied in the contract, there is little, if any, information in the case concerning the business activities of the plaintiff in the designated area in Pennsylvania. Significantly, the plaintiff's counsel in his argument does not seek to restrain the defendant from pursuing a competitive employment in that region.
Relative to the business of the plaintiff in New Jersey within which the defendant has rendered his services, I find in the defendant's deposition the following confirmation:
"Q. In fact he (plaintiff) covered most of the State of New Jersey, isn't that so?
"A. Practically, he did, yes sir."
While the issuance of preliminary restraint operative and effective only in a portion of the territory described in the contract has been condoned (Sonotone Corp. v. Ellis , 4 N.J. Super. 331 (App. Div. 1949)), yet at final hearing the reasonableness of the restrictive covenant must be considered in its entirety in the light of all the relevant circumstances of the particular case.
I pause therefore to consider whether the territorial range as described in the contract should with due regard to the language and evident intentions of the parties be construed as divisible. Cf., Fleckenstein Bros. Co. v. Fleckenstein , 76 N.J.L. 613 (E. & A. 1908). The defendant's services have been confined to the State of New Jersey and I think that the area in Pennsylvania was included to protect the plaintiff in the event that the defendant should thereafter be assigned to the Scranton territory.
I conclude that the contract is valid and in point of territory it is divisible. [8 NJSuper Page 455]
Negative covenants have been uniformly enforced in equity where the services of the employee have been of such a nature as readily to enable the employee to influence the business or trade with the customers of the employer. The defendant will be enjoined from violating the terms of the covenant within the State of New Jersey.
Judgment accordingly.
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Home > News & Commentary > Feature
Janik: Buyer Agency, Property Disclosure Biggest Milestones in 36-year Career
-A A +A Janik: Buyer Agency, Property Disclosure Biggest Milestones in 36-year Career
Laurie Janik sat down with REALTOR® Magazine to reflect upon the significant legal challenges NAR has faced over her decades-long tenure with the association.
November 2013 | By Robert Freedman
Long-time NAR General Counsel Laurie Janik will retire from the association at the end of November. Janik joined the association in 1977 as a summer law clerk and was named general counsel in 1987. During her tenure, NAR has faced significant legal challenges, including an antitrust lawsuit in 2005 by the U.S. Department of Justice challenging NAR’s policy on the display of listings on the Internet. Janik sat down with REALTOR® Magazine’s Robert Freedman in October to get her thoughts on the biggest issues the association has faced and what lies ahead. A national search for Janik’s successor is underway.
What’s been NAR’s most important accomplishment during your tenure? The shift, starting in about 1985, from cooperating brokers working as subagents of the listing brokers to representing buyers. That realignment of roles more accurately reflects reality because it’s consistent with agent behavior and, most importantly, it gives buyers representation, which they lacked before. Now, most buyers in a real estate transaction have an agent who represents them, and the listing broker represents the seller, and that’s a much healthier marketplace. But accomplishing the change wasn’t like flipping a switch. It took place over many years, about 10 years. States had to modify their laws and NAR modified its Code of Ethics and MLS rules to address buyer representation, and NAR acquired the Real Estate Buyer’s Agent Council (REBAC) and started offering education and the Accredited Buyer’s Representatives (ABR) designation.
Also significant was the advent of seller property condition disclosure forms, which happened around 1990. We took a look at where brokers were incurring the greatest number of lawsuits—perhaps not the highest dollar volume judgments, but the greatest number—and we implemented what is a very positive risk reduction tool for brokers to curb that liability: make the seller fill out a form that tells the buyer what the seller knows about the property. Everyone knows they’re not buying a perfect property, especially if it’s a resale. Buyers just don’t want surprises. Again, it took many years for this change to permeate the marketplace but it has been enormously beneficial for our members. Originally, we thought about addressing these disclosures through the Code of Ethics, but if a seller doesn’t want to make these disclosures, we’re putting our members at a disadvantage, because they’ll have an ethical duty to be making disclosures while someone down the street won’t. So we decided to lobby to have it adopted as state law, so then we had to go state by state, and there was resistance in some markets. That’s because if sellers were in a state where it was caveat emptor, buyer-beware, you were all of a sudden imposing a duty on a seller that just didn’t exist before. Some jurisdictions adopted it right away, but it was difficult in some jurisdictions. It’s pretty much in all states now, although some states give sellers the right to either disclose or disclaim, which in effect lets sellers say they’re not filling out the form, leaving buyers to take their chances.
For you personally, what was your biggest legal challenge on behalf of NAR?
Learn more about the NAR/DOJ settlement.
The antitrust lawsuit, only because we were up against the United States Department of Justice. That’s a pretty big challenge, when an agency of that magnitude disagrees with you on a legal matter, and it went on for quite some time. (The 2008 settlement was reached three years after the lawsuit was filed. The lawsuit concerned a policy allowing brokers to opt out of having their listings appear on virtual office websites, or VOWs, which are online brokerages requiring consumers to register to see listings. Under the settlement, brokers can’t opt out of MLS feeds going to specific brokerages but brokerages displaying listings must make an effort to generate listings on their own and sellers are protected from having their listings on the Internet if they don’t want them online, and they can also require false information to be removed. Read more about the Freeman Trademark Cancellation Trial.
Another challenge that kept me up at night was a petition to cancel the registrations for the terms REALTOR® and REALTORS® that was filed in the early 2000s with the U.S. Patent and Trademark Office. We had contacted a gentleman who was selling domain names that included the term REALTOR®, like Virginiarealtor.com and Washingtonrealtor.com, and said, “You can’t do this.” But this was his business model. He was also selling websites and other things. In response to that, he filed these cancellation petitions asking the Trademark office to take away the registrations for our marks, because, he claimed, the terms had fallen into a generic use. We took that challenge very seriously, because it would have been a huge loss to the organization; we were protecting the multi-billion-dollar brand of the organization. In the end, we prevailed: the terms were found not to be generic. Most people were saying we wouldn’t win, but we proved them wrong. They were claiming the relevant market was the broad universe of people who were using real estate services. We said, “No, we’re an association; we sell association services. We sell membership in our association, and the relevant market is the people who would be buying our services.” In fact, this gentleman was selling to the exact same market, our members. When we surveyed people who had held a real estate license for more than a year, 86 or 87 percent recognized that REALTOR® is a trademark that means a member of the National Association of REALTORS®. The Trademark Trial and Appeal Board gave our survey great credence, and it showed that the marks still had trademark meaning in the relevant market. It was a beautiful decision about the strength of the mark. They found that we had a strong and protectable mark and that we did a good job protecting it. For real estate, what has been the most significant legal case or decision, whether federal or state, during your tenure?
See NAR's legal case summary on Freeman v. Quicken Loans, Inc.
There isn’t one case I would say is huge. There were probably a dozen cases. Obviously cases that go to the U.S. Supreme Court are important. Last year’s 9-0 Supreme Court decision in the Freeman case interpreting the Real Estate Settlement Procedures Act (RESPA) was very significant, and I took pleasure in the decision because ten years before I had been telling HUD exactly what the Supreme Court said. (Under Freeman vs. Quicken Loans, the court ruled that the prohibition in RESPA of unearned fees referred to fees that are split with another service provider for which no service is provided—a kickback. The law does not apply to fees charged by a single entity. Another big one was Holley vs. Meyer, which held that a broker could be held liable for the discriminatory conduct of the broker’s agents.
How do you describe the value that NAR brings to its members?
NAR’s greatest value is its ability to help shape an environment in which its members’ businesses can prosper. Whether it’s in the legal environment or the legislative or regulatory environment, and whether its education, the association wants to help shape a healthy environment so that its members can go out, compete in their marketplace, and prosper. That is the role of NAR.
Looking ahead, what’s the biggest challenge NAR faces?
Ensure the availability of mortgage capital. That is critical to keep the market moving. It’s a great uncertainty right now. We’re looking at tightening mortgage standards, with the qualified mortgage (QM) rule, but even from a bigger perspective, if you take a step back, the flow of capital into the mortgage market, residential and commercial, is going to be critical. The federal government is working on rebuilding the secondary mortgage market. They’re trying to decide what to do with Fannie Mae and Freddie Mac, the two secondary mortgage market companies, and that’s one of NAR’s most important roles in the future: ensuring reform doesn’t hurt the flow of capital.
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About the Author Robert Freedman
Robert Freedman is the director of multimedia communications at NAR. He can be contacted at [email protected].
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Mike Pence Just Appointed A Judge Who Has Never Even Practiced Law Before
Posted by April Hamlin on 22 Nov 2016 Tweet
Mike Pence, Donald Trump’s vice president, has managed to piss off at least a few people in his last days as the governor of Indiana. He decided that since he’s on his way out the door, what the hell, why not appoint a judge who has never ever practiced law. Needless to say, this choice is not going over well.
Amy Jorgensen, who happens to be the St. John Republican Party Chairman (which surely has nothing to do with her appointment), was sworn in on Monday morning as Hammond City Court judge. She is replacing Judge Gerald Kray but has never actually practiced law before. Hammond Mayor Tom McDermott Jr. is understandably furious.
According to McDermott, Jorgensen’s appointment was “news to him.” As a matter of fact, he found out about it thanks to social media.
It’s such a joke,” McDermott said. “Judge Kray didn’t even get a call that this was happening.”
McDermott said that what concerns him the most is that Jorgensen has no idea what the hell she is doing since she has “never used her law degree.”
She admits she’s never practiced law, and she’s going to be a judge? This is unprofessional cronyism, and I have no confidence in this appointment,” McDermott said. “This lady ran Sylvan Learning Centers.”
Jorgensen reportedly received her law degree from the Valparaiso University School of Law. However, as I’ve said a few times already, she has never ever actually practiced law. Instead, she has run Sylvan Learning Centers and tutored children, which in no way adequately prepares a person to serve as a f*cking judge. But Pence couldn’t care less.
“Amy Jorgensen possesses the intellect and temperament to make an excellent judge,” Pence said in the press release announcing Jorgensen’s appointment. “I am confident that she will serve the community of Hammond with distinction, and I thank her for stepping forward in this capacity.”
Pence seems to be following Trump’s lead by appointing unqualified people to positions they have no business being in whatsoever. It’s a disturbing pattern that is apparently the blueprint for the next four years.
Featured image via Scott Eisen/Getty Images
Written by April Hamlin
April has studied political science, psychology, and philosophy. Back in the good old days she was a reporter for “old fashioned” print newspapers. In addition to news and politics, she also blogs about service dogs and disability advocacy. As a black woman with a disability, she is fed up with the right-wingers who would prefer that she and others like her didn’t exist. SEARCH THE SITE
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Filing: Gov doesn’t want challenge to surveillance
CHICAGO (AP) — Lawyers for a U.S. citizen charged with terrorism in Chicago said in a Friday filing that the government is dodging questions about whether it used expanded secret surveillance programs against their client to ensure the hotly debated practices can’t be challenged in the Supreme Court.
The claim in the Chicago case came in an early-morning filing at federal court in Chicago by attorneys for Adel Daoud, a 19-year-old, of Hillside, who is accused of trying to ignite what he thought was a car bomb outside a bar last year in Chicago. Daoud, whose trial is set for Feb. 3, has pleaded not guilty to attempting to use a weapon of mass destruction and other charges.
Legal observers say the question of what the government has to divulge and when has become an increasingly pressing one in light of new revelations about US. intelligence methods, and the answer courts eventually provide could have far-reaching implications.
Recent leaks by a former National Security Agency contractor Edward Snowden revealed that a secret Foreign Intelligence Surveillance Court, or FISA court, authorized one program that gathers U.S. phone records and another that tracks the use of U.S.-based Internet servers by foreigners with possible links to terrorism.
Prosecutors in the Daoud case refused to say in a filling last week whether they used far-reaching surveillance programs to launch their two-year investigation of the suburban teenager, saying they were under no legal obligation to spell out just what led to an FBI sting focused on him.
Friday’s 13-page defense filing argues the government’s refusal to confirm or deny whether it used those programs left defense attorneys legally hamstrung: With no answer, they have no grounds to mount a challenge to the programs’ constitutionality. And yet, prosecutors could still use the evidence at trial.
“Whenever it is good for the government to brag about its success, it speaks loudly and publicly (about its surveillance methods),” the filing says. “When a criminal defendant’s constitutional rights are at stake, however, it quickly and unequivocally clams up under the guise of state secrets.”
A spokeswoman for the U.S. Attorney’s Office in Chicago, Kim Nerheim, declined comment on the filing.
But Karen Greenberg, director of the New York-based Center on National Security at Fordham Law School, says government prosecutors, if they can, typically err on the side of not divulging procedures in terrorism cases.
“I don’t think it necessary means they fear losing a Supreme Court challenge,” she said. “Actually, I don’t get the sense they are worried.”
She added that defense attorneys face such insurmountable odds in terrorism cases, it’s no surprise many are now zeroing in on the constitutionality of surveillance methods.
“They don’t have too many other legal tools in their tool box,” she said. “You will have more and more of these kinds of challenges.”
A judge in the Chicago case is expected to rule soon on whether prosecutors are obliged to say if they used the expanded surveillance.
The primary source of contention in Daoud’s case, as in much of the national debate over U.S. surveillance, is the secret FISA court — set up by the 1978 Foreign Intelligence Surveillance Act. FISA amendments passed in 2008 allow the government to obtain broad intercept orders from the court — raising the prospect that calls and emails between foreign targets and innocent Americans could be subject to surveillance.
Similar disputes over the possible use of expanded surveillance have surfaced elsewhere, including in the federal case of two Florida brothers, Sheheryar Alam Qazi and Raees Alam Qazi, arrested last year for allegedly plotting to detonate bombs in New York City. Both men, who are naturalized U.S. citizens, have pleaded not guilty.
A recent filing by Sheheryar Alam Qazi’s attorneys echoes the Daoud filing, saying the defense wasn’t seeking details about the secret surveillance procedures — only whether they were used.
Since the 2008 amendments extended the reach of the foreign intelligence law, the U.S. government has consistently declined requests in terrorism cases to say if enhanced surveillance powers kick-started wider investigations, according to both the Daoud and Qazi filings.
“(The government) would undoubtedly prefer to maintain that record, which has rendered the government’s warrantless wiretapping program all but unreviewable in the interim,” the Qazi filing says.
In February, the Supreme Court threw out an attempt by U.S. citizens to challenge the 2008 expansion of FISA because the plaintiffs couldn’t prove the government did or will monitor their conversations along with those of potential foreign terrorist and intelligence targets.
But the high court added its decision did not insulate the FISA expansion from judicial review in the future.
Follow Michael Tarm at http://www.twitter.com/mtarm
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« Acts of Kindness
Open Letter to the Community
Save | Open letter to the community: Where we've been, where we are, how to move forward to the finish line. Where we've been: Over the past three months our committee has gathered information from as many sources as possible. We have visited many facilities; we talked to owners, managers, caterers, and event planners in order to make rational and informed decisions about our proposed community center. We have had several meetings with the steering committee of ECDC. In last Tuesdays edition The Democrat and Reporter listed the areas we agree. I won't take the time to repeat that list. Where we are today: We have had our final meeting with the steering committee. We disagree on the following points: Size and cost of the facility-the ECDC committee prefers the original 10,400 square foot building at a cost of $1,500,000. We have compromised from 5,000 to nearly 6,500 square feet at a cost of nearly 1 million for a difference of $500,000. Design of the facility-we prefer a smaller building that enhances the beauty of the area. We feel a large box type structure actually detracts from the beauty of the lake. Ongoing operational costs- the larger structure will be more costly to maintain and will have a higher operational budget due to higher employee salary and benefit costs. Parking-Parking is limited with 74 spaces available for golfers, employees, and those who will be attending an event at the community center. We think a smaller facility would reduce this problem. How to move forward: Step one: The concerned citizens committee has always felt that the survey completed in 2009 was premature and lacked focus. We think it is time to survey the people of Emmetsburg. Today, more than ever people are focused and tuned into the process of creating a community center. The people have listened to our proposals, they now have options, and they are ready to voice their opinions. We have invited ECDC to join our committee to formulate a short survey to be conducted through the Municipal Utilities monthly billing cycle. Those who complete the short survey could mail it back to EMU or drop the survey off at several locations. Step two: After the survey results are tabulated, the City Council would have a vote on which proposal they wish to fund with tax payers money. This would be an open process and each council person would be on the record. In closing, I would like to thank everyone involved in this process. Our meetings were conducted in a professional manner and even though we disagreed on several key issues we did so respectfully. (signed) Pete Hamilton Chairperson Concerned Citizens Committee Emmetsburg, IA Save | Subscribe to Emmetsburg News I am looking for:
Emmetsburg News P.O. Box 73 , Emmetsburg, IA 50536-0073 | © 2016. All rights reserved.| Terms of Service and Privacy Policy
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Jordan, Smith honored with leadership awards Legal Services of Greater Miami presented its 2013 Equal Justice Leadership Awards to Judge Adalberto Jordan, U.S. Court of Appeals for the 11th Circuit, and H.T. Smith.
The awards were presented at LSGMI’s Fourth Annual Heart of Giving Celebration, co-hosted by Florida Supreme Court Justices Fred Lewis, Barbara Pariente, and Peggy Quince at the Gary Nader Fine Art Gallery and attended by more than 400 members of the South Florida legal and business community and judiciary. The Campaign for Justice, co-chaired by Raoul Cantero, Tracy Nichols, and Bob Parks, was created to raise community awareness about and support for LSGMI to ensure that access to the nation’s system of justice does not become a luxury. Proceeds of the event will be used to establish the H.T. Smith Law Student Fellowship at LSGMI and to support LSGMI’s ongoing services to the community.
“We are deeply grateful for the overwhelming support from the local community which has helped LSGMI to keep the promise of equal justice in both good times and bad,” said Marcia K. Cypen, LSGMI executive director.
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Attorneys, law professors weigh in on whether McCulloch should step aside in fatal shooting case
Legal scholars have differing views on whether St. Louis County Attorney Robert McCulloch should step aside
By Ed SilversteinAugust 21, 2014
Legal scholars have differing views on whether St. Louis County Attorney Robert McCulloch should step aside in handling the case involving the shooting death of Michael Brown by a Ferguson, Mo., police officer.
Some contend that from the point of view of legal ethics McCulloch should not step aside. Others, including some local attorneys, say there many reasons why someone else should lead the possible prosecution, which is now being considered by a grand jury.
In an interview with InsideCounsel, American University law professor Angela J. Davis said she personally thinks that McCulloch should voluntarily recuse himself from the case involving the police officer.
Legal ethics expert sees previous dysfunction in GM legal department
Whistling an ethical tune
Social media can cause problems for lawyers when it comes to ethics, professional responsibility
Typically, recusals come about if a prosecutor or judge believes a conflict of interest would prohibit them from doing their jobs. Often, they relate to someone having a close, personal relationship, such as being a close friend or the person is a relative. If this were the case with McCullough and the police officer, Davis said there would be “no question” the prosecutor would recuse himself.
But in this case, there are other factors that should lead him to step aside, she said. “His background is enough for him to recuse himself,” Davis said. His father died in the line of duty, as a police officer, and many of his relatives have worked for the department. He has made statements defending the police department when the governor directed the Highway Patrol to take a major role in the situation. There also have been questions about his commitment to prosecute police officers in the past.
“Any one of these issues would raise an eyebrow,” Davis said, adding that in totality, they make it necessary for the prosecutor to step aside.
“There are many good reasons for him to step down,” Davis said.
In addition, Davis says a special prosecutor should be appointed, someone who is outside of McCullough’s office. She points out that “he is in charge of that office.”
She also explained that because prosecutors work with police departments all of the time, there is likely going to be some bias in favor of the local police. “In his (McCullough’s) case, it goes beyond that,” she said.
And very importantly, Davis said, McCullough should want the process to be a fair one, where the community can believe that justice has been done. She added that confidence and satisfaction with the process “should outweigh anything else.”
“The appearance of fairness in the criminal justice system is extremely important,” Davis explained.
There is also another basic issue about McCullough. Davis points out, “It is not as if he is the only prosecutor capable of handling the case. He has no special expertise needed for this case.”
Davis, who has widely studied prosecutorial power and racism in the criminal justice system, was previously a director of the D.C. Public Defender Service.
Similarly, Mount City Bar President Kendra Howard, who heads up the local African-American bar association, has said, "Mr. McCulloch has shown that he is emotionally invested in protecting law enforcement, and therefore should immediately step aside and allow the Justice Department to investigate the death of Michael Brown."
And in an online petition, MoveOn.org says, “McCulloch must fully recuse himself and his office from the investigation related to the murder of Michael Brown.” It cited McCulloch's decision not to charge officers who killed two unarmed African-American men in 2000 and shot into their car 20 times.
This “gives us no confidence that his office can provide a fair and impartial investigation into this current matter,” the petition said. As of Aug. 20, 2014 the petition had 72,367 signatures. On the other hand, Bruce Green, who directs the Louis Stein Center for Law and Ethics at Fordham Law School, said in a statement to InsideCounsel, “Robert McCulloch is the democratically elected county prosecutor. Presumably, when it elected him, his constituency had confidence in his competence and fairness. Unless there are grounds for him to recuse himself, he has a responsibility to investigate shootings that occurred in his county over which his office has jurisdiction, including this one.”
“There is no suggestion that Mr. McCulloch has a close personal relationship with the officer under investigation, the victim, a witness, or any other relevant individual that might give rise to an impermissible bias,” Green adds. “It is true that he has had a dramatic life experience -- his father, a police officer, was shot to death in the line of duty. This was undoubtedly searing and there is no telling how it has shaped his approach to law enforcement. If he thinks he cannot be fair as a result, he should step aside. But his life history is not, objectively speaking, a disqualifying relationship or bias.” “All prosecutors have life experiences that contribute to their approach to prosecuting and that may potentially influence their judgment, but their election to the position gives rise to a presumption that they can discharge their responsibilities fairly,” he added.
“Let’s judge him on his record, not on his past,” added American University law professor Susan Carle, another prominent leader in legal ethics. She adds she does not see anything in his background that would suggest he would not be zealous enough in the case. She points out too that as a relative of a victim of crime involving gun violence some might argue he could be on Brown’s side.
“Let’s not prejudge,” she added. “Let’s look at the merits.” And she says attorneys in such situations have to ask themselves, “Can I be fair and zealous in this situation.”
Also, Stephen Gillers, a professor at NYU Law School and specialist in legal ethics and professional responsibility, said nothing in McCulloch’s personal history “requires him to step out of the case. If a court were asked to remove him, it would and should reject the request. Those conclusions are not debatable.”
But McCulloch, or the governor, “are free to decide that even though McCulloch is ethically able to conduct the prosecution, it would be best to appoint a special prosecutor,” Gillers said in a statement to InsideCounsel.
McCulloch “is not required to step aside, nor is he required to stay in,” Gillers added.
“The community and the governor should keep in mind that while McCulloch is politically accountable to the public – he must run for office – a special counsel is not,” Gillers explained.
Meanwhile, Missouri Gov. Jay Nixon said this week he will not ask McCulloch to step down from the prosecution of Ferguson police officer Darren Wilson.
“I am not asking St. Louis County Prosecutor Bob McCullough … to recuse himself from this case,” the governor’s statement said. “There is a well-established process by which a prosecutor can recuse themselves from a pending investigation, and a special prosecutor be appointed. Departing from this established process could unnecessarily inject legal uncertainty into this matter and potentially jeopardize the prosecution."
Missouri Attorney General Chris Koster released a statement supporting McCulloch, too. “It should be noted that Bob McCulloch has been elected by the people of St. Louis County seven times in a row, and he is one of the most experienced prosecutors in our state,” Koster said. “It is my understanding he has placed the matter in the hands of two highly experienced prosecutors, one of whom is African-American. I trust in their ability to diligently and fairly present the evidence in this case." « Prev
Ed Silverstein
Ed Silverstein is a veteran writer and editor for magazines, websites and newspapers. A graduate of Harvard's Kennedy School of Government, he has won several...
Careers 1976 law enforcement 115 Missouri 93 Ethics 76 American University 14 conflict of interest 9 Chris Koster 8 Fordham Law School 4 Join the Conversation
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Government procurement rules used to set aside ministry's procurement decision
Since 2006, the Ministry of Business, Innovation and Employment has promulgated rules for government procurement decision making. The rules have been imposed on government entities by cabinet directions to the affected entities. Initially, mainly core ministries and departments were bound, but since 2014, when the rules were amended, they have been extended to other government agencies.
The original rules recently featured in a successful judicial review application brought by the Problem Gambling Foundation (PGF) to set aside a Ministry of Health decision to award contracts to the Salvation Army in preference to the PGF, an incumbent, following a request for proposals (RFP) process. The services to be contracted were to cover the final 30-month period of a six-year integrated problem gambling strategy. The RFP specified eight criteria and associated weightings, each with numerous sub-criteria, and the use of an evaluation panel with a non-voting chair and six voting members. The panel undertook a decision process that included:
individual pre-scoring;
group consensus scoring; and
moderation.
The group consensus discussion resulted in individuals changing their initial scores and the moderation stage, while not changing scorings, produced changes in preferred rankings. The evaluation panel recommended other providers in preference to PGF in all but two minor areas and the ultimate decisions largely followed the panel's recommendations.
From the claim, the High Court judge identified the following key issues:
whether grounds for review were available;
whether there had been a failure to follow the evaluation process and criteria set out in the RFP (breach of the mandatory procurement rules and legitimate expectation);
whether there were material errors justifying review (flawed evaluation methodology); and
whether the decision had been affected by bias or failure to manage conflicts of interest.
Scope of review
The court distinguished the leading Court of Appeal decision on the reviewability of procurement decisions (Lab Tests (Auckland) v Auckland District Health Board),(1) on the basis that the decision-making context was different in the following respects:
The RFP did not result in a process contract (which Lab Tests had indicated would be an available ground for review);
The services were required for the purposes of a different enactment;
The enactment was not prescriptive about process and contained no commercial or budgetary objectives (as the services would be funded by a levy);
The process was subject to the Mandatory Rules for Procurement by Departments;
The Mandatory Rules required conflicts of interest to be eliminated and generally supported a broad scope of judicial review;
The process included no negotiation;
The subject matter was not complex;
The proposing parties were not private, profit-seeking firms; and
There was not the same non-judicial accountability by the decision maker.
The decision also distinguished between the "substantive merits" of a decision and whether it is "logical or reliable or soundly-based".
As a result, the Lab Tests principles, which expressly limit the available scope of judicial review of procurement decisions, did not apply and the decision was open to review on all grounds raised.
Process failures
Unsurprisingly, the court found that departures from the published evaluation process and the Mandatory Rules justified the decision being set aside on one or more bases (ie, error of law, unreasonableness, legitimate expectation and ultra vires – that is, beyond the scope of legal authority). However, the court held that the ground was not restricted to published and mandatory processes – it also encompassed voluntary and internal process rules privately adopted by the panel.
The court found that the panel had materially departed from the published evaluation process, including:
changing the sub-criteria and their weightings without notice;
using other non-notified matters in the evaluation; and
inserting a new evaluation stage (moderation), which used principles not only not notified in, but also in conflict with, the RFP.
The departures breached both the PGF's legitimate expectation regarding process and the requirements of the Mandatory Rules, and were a sufficient basis to set aside the decision. However, the PGF's claims to a legitimate expectation of oral discussion of the proposal and of signalled intentions to an incumbent to change provider were rejected.
Mistake of fact or lack of probative evidence
The court upheld PGF's claim that, because the evaluative methodology was flawed, the results were unreliable. The court held that a mistaken belief by the panel that it was implementing a well-designed process properly was distinct from the evaluation of the substantive merits of the decision. The court accepted the expert evidence of a statistician who was highly critical of the design and implementation of the evaluation process. The substantial variations in individual scores between panel members were indicative that the criteria were poorly defined. Consensus scoring undermined the independent assessment that the RFP required and covered up the problems created by imprecisely defined criteria. The court held that the Ministry of Health lacked the expertise to evaluate competitive tenders of this nature and the skills to ensure a fair and transparent process (which the Mandatory Rules required). These failures were a further basis to set aside the decision.
Conflict of interest or bias
The ministry conceded that six of the seven panel members had disclosed potential conflicts of interest. Two ministry staff were the contract managers for some bidders, one member had a relative who worked for a subcontractor for a bidder and two had worked for bidders (including the PGF) in the past. Because the Mandatory Rules required the elimination of potential conflicts of interest and an evaluation that guaranteed fairness and impartiality, the court held that it was appropriate to apply the apparent bias standard usually reserved for judicial decisions. The panel members had agreed internally that they would exclude all matters of personal knowledge from evaluation and rely solely on the content of the proposals. As the use of personal knowledge was inevitable – it was impossible for panel members to avoid using personal knowledge unconsciously – the evaluation process rules had the overall effect of requiring the judicial standard of impartiality, but the panel composition meant that it could not be met.
The decision marks a major departure from earlier decisions regarding the available scope of judicial review of government procurement decisions. Of particular concern to government entities engaged in procurement will be the numerous bases on which the Lab Tests decision was distinguished.
The court confirmed that cabinet-imposed procurement rules will be strictly applied and that non-complying decisions may be set aside. This outcome is consistent with comments made in the Lab Tests decision. It is unsurprising that the court held that any notified evaluation and selection process (whether derived from the RFP or from published procurement rules) must be followed in the light of those comments, although review of procurement decisions on the basis of unpublished internal rules had not been granted previously. However, this decision went even further and held that the very existence of cabinet-imposed procurement rules supports the availability of judicial review of procurement decisions on broad grounds.
The Mandatory Rules for Procurement by Departments have since been replaced by the Government Rules of Sourcing (Third Edition 2015). The conflict of interest provisions of the existing rules now require policies "to identify, notify and manage conflicts of interest" and the exercise of "sound judgement to manage conflicts", rather than their elimination, as the former Mandatory Rules required.
As evaluation panels commonly contain members who are experienced in the specific area of service provision, treating any personal knowledge gained professionally as a form of bias could be a matter of concern for future procurement decisions. However, it is possible that personal knowledge was treated as bias in this case only as the result of the panel's internal commitment to avoid the use of personal knowledge (which the judge found to be impossible to achieve).
The most controversial aspect of the decision may be the court's willingness to scrutinise the substance of the evaluation decision by critical examination, after the event (and using the actual scoring results), of the design of the notified evaluation process. If an evaluation panel's recommendation can be challenged on such a basis, many procurement decisions will be susceptible to judicial review challenge.
The decision has been appealed.
For further information on this topic please contact Chris Browne at Wilson Harle by telephone (+64 9 915 5700) or email ([email protected]). The Wilson Harle website can be accessed at www.wilsonharle.com.
(1) [2008] NZCA 385; [2009] 1 NZLR 776.
Government procurement
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Senior Manager: Central Risk Unit
Customs Risk Management & Intelligence Division
South African Revenue Service
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We need an answer: are unsecured creditors entitled to recover attorneys’ fees incurred during a bankruptcy?
Most loan contracts include provisions allowing the collection of attorneys’ fees in the event the borrower defaults. These attorney fee provisions are routinely enforced in collection suits brought in state courts.
However the federal bankruptcy courts operate independent of the state court debt collection system. Bankruptcy cases often generate a variety of controversies that will not occur in a state court collection suit. Thus, the issue frequently has arisen whether a general unsecured creditor may be allowed a state law-based contract claim against the bankruptcy estate for the attorneys’ fees the creditor incurs during a bankruptcy case.
In the bankruptcy proceeding of the Tribune Media Company, an indenture trustee filed a proof of claim for more than $30 million of attorneys’ fees it had incurred in connection with that bankruptcy. The trust indenture included customary text permitting the indenture trustee to recover costs and expenses of collection. On November 19, 2015, the highly-influential U. S. Bankruptcy Court for the District of Delaware issued an opinion, disallowing the indenture trustee’s claim for attorneys’ fees.
In its opinion, the bankruptcy court adopted a categorical rule that attorneys’ fees may never be allowed on a general unsecured claim. The court stated several rationales in support of its categorical rule. First it referred to section 506(b) of the Bankruptcy Code which expressly provides for allowance of post-petition attorneys’ fees for oversecured creditors. Citing the maxim of expressio unius est exclusio alterius(the expression of one is the exclusion of the alternatives), the court inferred that post-petition attorneys’ fees may not be allowed for unsecured creditors.
The court also construed section 502 of the Bankruptcy Code to require a court to determine the amount of a claim as of the date the petition was filed, thus precluding consideration of postpetition fees and costs. Finally the court relied on a policy argument that it is inequitable to allow certain unsecured creditors (presumably those whose contract allow a shifting of attorneys’ fees) “at the expense of similarly situated creditors.”
Significant to the court’s reasoning in Tribune was its interpretation of the U. S. Supreme Court’s opinion in Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co.,549 U.S. 443 (2007). Specifically, the Tribune court reasoned that the Supreme Court in Travelers did not preclude a categorical rule disallowing attorneys’ fees in bankruptcy cases.
In Travelers, the Supreme Court reviewed the validity of a federal common law rule (known as the “Fobian rule”), namely that “attorneys’ fees are not recoverable in bankruptcy for litigating issues ‘peculiar to federal bankruptcy law.’” The Supreme Court rejected the Fobian rule because it found “no support in the Bankruptcy Code, either in § 502 or elsewhere” for the rule. Travelers reaffirmed a long-standing Supreme Court principle: “we generally presume that claims enforceable under applicable state law will be allowed in bankruptcy unless they are expressly disallowed.” Concluding that the Ninth Circuit’s application of the Fobian rule to preclude attorneys’ fees in bankruptcy was incorrect, the Supreme Court reversed and remanded the case.
The Tribune bankruptcy court construed Travelers to not foreclose the disallowance of attorneys’ fees on other statutory basis. Therefore, the bankruptcy court was free to consider whether section 506(b) precludes post-petition attorneys’ fees on unsecured claims, since the preclusionary effects of section 506(b) had not been fairly raised in the lower courts and was not considered by the Supreme Court inTravelers.
The court’s opinion in Tribune, while persuasive authority in some jurisdictions, will not be followed in other jurisdictions. For example, in Ogle v. Fidelity & Deposit Co. of Md., 586 F.3d 143 (2d Cir. 2009), the Second Circuit rejected the argument that section 506(b) of the Bankruptcy Code amounts to an express disallowance of attorneys’ fees on unsecured claims by negative inference or otherwise. Similarly the Ninth Circuit in In re SNTL Corporation, 571 F.3d 826 (9th Cir. 2009) determined that an unsecured creditor could include in its proof of claim attorneys’ fees incurred post-petition that were authorized by a pre-petition contract.
The issue of whether attorneys’ fees incurred postpetition by a general unsecured creditor are allowable will likely remain open until the categorical rule premised upon section 506(b) is finally reviewed by the Supreme Court. Until then parties will need to take into account lower court precedents established in the applicable jurisdictions.
Squire Patton Boggs -
Maxwell Tucker Filed under
Unsecured creditor
Alcohol in the workplace - how to know when you’ve had enough
* 21st Century Cures Advances to Senate; Health Bills Scheduled for House Floor; MedPAC Meetings This Week
* Insurance Archaeology and the London Market
* Recruitment and wage & hour law in the UK
* Senate Expected to Act on the NDAA Conference Report; Iran Sanctions Extension Act Sent to President Obama’s Desk
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martindale.comLegal Library Legal Library Advanced Search Browse by Practice Area Browse by Industry RSS Feeds Switzerland UK Budget 2014 Analysis by: Withers Bergman LLP - New Haven Office March 24, 2014Previously published on March 19, 2014No surprises, but some significant changes Despite the usual rumours, today’s UK Budget was, at least in tax terms, one of the more uneventful Budgets in recent years. Nevertheless, there were a few headline-grabbing announcements (including changes relating to pensions and the introduction of a new GBP1 coin) and also some significant announcements hidden in the fine print. We set out below the personal tax highlights which are primarily relevant in an international context. UK real estate ATED (annual tax on enveloped dwellings) The ATED currently imposes an annual tax charge on residential property worth GBP2,000,000 or more which is ‘enveloped’ (i.e. held in a company). Today the Chancellor announced that the charge is to be extended to a broader range of residential property. As of April 2015, all enveloped residential properties worth GBP1,000,000-2,000,000 will be subject to the ATED, and from April 2016 the charge will be further extended to residential properties in the GBP500,000 -1,000,000 price bracket.
More immediately, the 15% rate of SDLT that applies to purchases of residential property by companies will be extended to properties worth GBP500,000 or more as of 20 March 2014.
Given that the Budget papers reveal that the ATED has raised 5 times the amount forecast for 2013-14, it is hardly surprising that it is being extended across a greater band of properties. However, there are a number of points arising. First, non-residents selling UK real estate will be subject to capital gains tax as of April 2015, so anyone wishing to restructure out of an existing enveloped structure will need to focus on doing so in good time before next April. Second, given the apparently ever-increasing rise in central London property prices and the continuing allure of such properties for international investors, those investors will face a stark choice between the ATED charges and an exposure to inheritance tax on their UK properties. Capital gains tax for non-resident UK property owners As mentioned above (and as announced in the Pre-Budget Report last December), the intention is that non-UK residents will become subject to capital gains tax on disposals of UK residential property as from April 2015. We were promised a consultation on this change, but this did not materialise in today’s Budget, although we have now been told that it will be published ‘shortly’. In the meantime, the precise scope of the changes remains unclear and we will of course monitor the consultation closely and issue regular updates. Principal private residence relief for main residences As also announced in last December’s Pre-Budget Report, the principal private residence exemption is to be restricted. At present the exemption applies automatically to the proportion of the capital gain on sale which relates to the last three years of ownership if the property has at any time been the seller’s main residence (even if it no longer is). The final exemption period will be reduced from 36 months to 18 months as of 6 April 2014. Current sellers will therefore need to finalise contracts in the next two weeks or so if they are to avoid a capital gains tax charge. Dual contracts and non-domiciled UK residents Yet another announcement last December was that legislation would be introduced to prevent non-domiciled resident taxpayers from using dual employment contract arrangements artificially to assign part of their employment income to an overseas employment contract to avoid tax liabilities in the UK. Draft legislation was then published for consultation in January and today further details were announced about the proposed new rules.
In broad terms, the rules will restrict the advantage of dual contracts where the foreign earnings are subject to less than 65% of the UK additional tax rate. Based on the current additional rate of 45%, this means foreign income taxed at a rate less than about 29% will be treated as subject to income tax on the arising basis.
However, the ‘overseas workday relief’ remains unaffected. This relief allows non-domiciled employees who have been resident in the UK to claim the remittance basis for duties performed outside the UK in the first three tax years of UK residence. The change announced today, combined with the fact that dual contracts are already often ineffective to avoid tax (e.g. because the employee’s onshore and offshore roles are too similar) suggests that Overseas Workday Relief will become increasingly important, especially for shorter term relocations. Inheritance tax on foreign currency bank accounts The Finance Bill 2014 will contain provisions which will mean that a liability will be disallowed as a deduction from the value of an estate where the borrowed funds have been put into a foreign currency bank account in a UK bank, either directly or indirectly, so that the funds are not chargeable to inheritance tax on the death of a non-resident non-domiciled individual. This is intended to close a loophole enabling foreign currency bank accounts to be used to circumvent the recent new rules restricting deductions from the value of an estate.
The new provision will apply whenever the liability was incurred but only where a death occurs on or after the date of the Royal Assent of Finance Bill 2014 (likely to be in mid-July). Pensions From April 2015, pensioners with defined contribution schemes will have a greater degree of flexibility in how they deal with their pension on retirement and the requirement to buy an annuity will be removed. The 25% tax-free lump sum will continue to be available, but pensioners will have three choices for the balance of their pension; (i) to withdraw their entire pension on retirement (such withdrawal to be taxed at income tax rates, rather than 55% as currently); (ii) to purchase an annuity; and (iii) to flexibly drawdown benefits over time. Defined benefit scheme members will not have the same flexibility, but consultation will take place as to whether the rules could be extended.
Interestingly, while this measure is expected to be popular with pensioners, it is also anticipated that it will raise substantial amounts of tax revenue, as once funds have been withdrawn from a pension they will become taxable. The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance. View More Library Documents By... Practice Area GovernmentTaxation Withers Bergman LLP Overview
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14 Years in Prison for His Father's Crime: The Story of Pastor Adam Riojas
by: Kierstin HillAdam Riojas spent 14 years in level 4 federal prison for a crime he did not commit. His father committed a murder in LA and inaccurate evidence was able to place Adam at the scene of the crime. Adam, an Oceanside High School graduate, was an extremely successful real estate agent living in Hawaii when he was arrested the first time. He was detained in solitary confinement and interrogated non-stop for three days straight, but did not know any answers associated with the murder. After three days, he was released and did not think much of it after, because he knew those days had just been a mistake. Eight months later he was arrested in Hawaii again and this time was immediately sent to LA County Jail. He was offered a plea – if he told the detectives who actually committed the murder, he would be set free. Only problem was, he didn’t know who did it. Adam did not talk to anyone in LA County Jail – he was angry, he was innocent, he wanted to be set free. One day an inmate handed Adam the Bible and said, “I can see that you are angry and troubled. God can help you.” Adam threw the Bible back at him and said “God? There is no God. God wouldn’t incarcerate someone who didn’t commit a crime.” After thinking about it a few days, Adam picked up the Bible and read it cover to cover. Then again, and again. He read the Bible five times that first year in jail and truly found God. After his first year in LA County Jail, Adam was transferred to a Level 4, high-security federal prison. He wrote letters to Christian publishers and told them his story and asked them to send him their books. He filled his time by studying the Bible and reading various Christian literature. While in prison, Adam recalls he would yell in the hall “Okay guys, we’re going to talk about Jesus right now!” At first he received quite a few explicit comments back, but a handful of people started listening. Pretty soon that small group of people grew and grew and Adam had formed his first congregation. The Chaplain of the prison approached Adam and said “I don’t usually do this with inmates, but I want to ordain you as an inmate pastor.” Adam accepted and quickly became an extremely successful inmate pastor. Traditionally, a good day in the church would have 20 people in the room, but when Adam was preaching a room of over 500 people was standard. During his 14 years in prison, he was transferred six times and earned a total of 12 vocational licenses, which equates to two PhD’s. Adam always remained the most popular pastor at each different prison and continued to pull record number crowds at his services. In 2004, Adam’s father was in a coma and dying. Out of nowhere, his father woke up from the coma and shouted “I’m guilty, my son should not be in prison. I did the crime.” A witness heard and Adam’s mother hired a private investigator. After an investigation, his case was submitted to the Board of Prison Terms. His case was reviewed and the Board found him not guilty. The California Innocence Board fought on Adam’s behalf and soon after, Adam was a free man again. After his time in prison, Adam moved back to North County and started work as a general contractor. Ironically, the vocational skills he learned in prison made him the perfect candidate to become a successful handyman. He opened his own business and within two years, had twenty employees and was able to buy a few properties. However, he still didn’t feel like he was doing what he was called to do. A regular at Calvary Chapel Oceanside, Adam was approached by the senior pastor and was asked to become a pastor at that church. He accepted and completed a four-year internship program in just one year. He helped to grow the church membership by leaps and bounds and enriched the lives of those who attended his services. Even with his success at Calvary Chapel, he still felt as though that was not his true calling. Adam always felt as if God called him to open his own church, but he did not know much about the backend of running a church. However, after a series of events, Adam opened ‘At The Cross’ church in Oceanside and is currently the Senior Pastor. At The Cross Oceanside currently meets at Oceanside High School and has two services on Sunday mornings at 9:00 am and 11:00 am. This story was featured in the 2015 edition of Oceanside Living Magazine: Unique People and Places. The entire magazine can be viewed here: http://bit.ly/OceansideLiving2015 3 Comments
Frank link
In regards to this article on Adam Riojas. I found some official court docs online and thought you may want to do a little more research next. Check the second page end of the second paragraph it states Adam was paroled. http://www.vcgcb.ca.gov/docs/pc4900/PC-4900-Denied-Riojas.pdf
Some more information please, I don't wish my wife to to be pulled into "At the Cross" in Oceanside without understanding first, if you might be able to help, I appreciate that
Oceanside Chamber of Commerce
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Consumers Launch Landmark Legal Case Against Google Snooping
LONDON, January 27, 2013 /PRNewswire/ --
A group of internet users has launched a landmark privacy case against Google for undermining the security settings on Apple's Safari browser to track online usage covertly.
In the first case of its kind in the UK, a number of people with concerns about Google's behaviour have decided to take action and are forming a campaigning group called Safari Users Against Google's Secret Tracking.
They have instructed the law firm, Olswang, to coordinate the claims and are marking Data Privacy Day tomorrow (Jan 28) by launching a Facebook page to provide information to the many other people who might also have been affected. The Facebook page can be found at http://www.facebook.com/SafariUsersAgainstGooglesSecretTracking
The claims centre around tracking cookies, which had been secretly installed by Google on the computers and mobile devices of people using Apple's Safari internet browser.
The first claimant to issue proceedings, 74-year-old Judith Vidal-Hall, said: "Google claims it does not collect personal data but doesn't say who decides what information is 'personal'. Whether something is private or not should be up to the internet surfer, not Google. We are best placed to decide, not them."
Through its DoubleClick adverts, Google designed a code to circumvent privacy settings in order to deposit the cookies on computers in order to provide user-targeted advertising. The claimants thought that cookies were being blocked on their devices because of Safari's strict default privacy settings and separate assurances being given by Google at the time. This was not the case.
The practice was only stopped when an academic researcher noticed Google's activity and published an exposé in the United States. Google was subsequently found to be in violation of an existing order from the US Federal Trade Commission and was fined a record $22.5million.
Olswang say that this action breached their clients' confidence and privacy and are now seeking damages, disclosure and an apology from the company.
Dan Tench, a Partner at Olswang, said: "Google has a responsibility to consumers and should be accountable for the trust placed in them. We hope that they will take this opportunity to give Safari users a proper explanation about what happened, to apologise and, where appropriate, compensate the victims of their intrusion."
For information on joining the claim, email [email protected]
Media enquiries: Olswang Press Office on +44(0)20-7067-3046. SOURCE Olswang LLP Journalister och bloggare
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Executive Producer for "Preachers of LA" and Lions Gate Executive Have Been Sued for $5 Million in an Alleged Breach of Contract Case by Central South
Entertainment industry executives Holly Carter and Jeff Clanagan have been named in a law suit, filed by Attorney James L. Walker, Jr., of Walker & Associates, for allegedly breaching an agreement to commercially release movies and soundtracks.
James J. Walker Jr., Attorney & Legal Analyst
Central South is seeking its day in court because they never received the allegedly promised sound tracks or saw the movies released in nationwide theaters.
Atlanta, GA (PRWEB)
According to court documents, after several years of trying to resolve an on-going dispute, top television producer and music industry veteran Holly Carter and veteran Lion’s Gate movie executive Jeff Clanagan were named in a landmark $5 million dollars law suit this week. Carter and Clanagan allegedly breached an agreement to commercially release movies contractually promised, according to the complaint filed in the Circuit Court for Davidson County, Tennessee [14C483]. Central South allegedly advanced Ms. Carter and Mr. Clanagan hundreds of thousands of dollars to produce and release movies and soundtracks according to court documents. "Central South is seeking its day in court because they never received the allegedly promised sound tracks or saw the movies released in nationwide theaters,” said high-profile Attorney James L. Walker, Jr.
Carter, an industry music manager for Grammy Winning Mary Mary and artist Deitrick Haddon, among others, is the top producer of the hit Oxygen Television Network Show “Preachers of L.A.” Clanagan, known for his work at Code Black and Lion’s Gate, has worked on numerous films and projects with the likes of Steve Harvey, Cedric The Entertainer, Kevin Hart, and Comedian/Actress Mo’Nique, among others. “We had to file suit in order to protect our interests,” said Chuck Adams, President of Central South. The law suit can be read in full at http://www.walkerandassoc.com and it involves movies and soundtracks that allegedly were not delivered as promised.
Walker, who along with Atlanta based Attorney J.C. Lyons and Tennessee lawyer Robin J. Gordon, filed the multi-court law suit in Tennessee, where Central South is based. “My Co-Counsel Attorney Gordon and I plan to move swiftly and aggressively in taking depositions, engaging full discovery and pushing this case to trial as soon as we can,” Walker added. About Walker & Associates: Attorney James L. Walker, Jr. has worked with leading names in the music industry including Canton Jones, Jaime Foxx, Freddie Jackson, Men of Standard, DMX, Shirley Caesar, Donald Lawrence and BET's Bobby Jones, among many others. He co-chaired the legal team in the successful litigation settlement between Disney's Kyle and Chris Massey and A&E/Lifetime over the Bristol Palin show. He recently settled a major law suit against Sony BMG that shook up the music industry. Walker authored “This Business of Urban Music” (Random House/Billboard Books), the #1 urban legal reference book; and he has taught classes or workshops at Yale, Harvard, UCONN, Boston College School of Law, Howard and UMASS, among other. He plans to teach law related class "Michael Jackson: The Business of Music" in Atlanta.
About Central South:
Central South is a leading independent music distributor in the United States, responsible for a number of well-known artist presently on the charts, including Jessica Reedy, Monica Stevenson, Canton Jones, Tamela Mann and Wes Morgan, to name a few. Based in Tennessee, the distributor is annually among the top distributors on the music charts worldwide.
BUNNIE JACKSON-RANSOM
FIRST CLASS, INC. +1 (404) 505-8188
James Walker
Walker & Associates 203-619-1983
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Ex-funeral home owner found guilty in theft case
STOCKTON - The former owner of Thompson's Funeral Home in Stockton was found guilty Thursday of theft from an elder, grand theft and elder abuse.
STOCKTON - The former owner of Thompson's Funeral Home in Stockton was found guilty Thursday of theft from an elder, grand theft and elder abuse.Reginald Thompson stole about $20,000 from at least seven customers who had paid him for funeral pre-arrangements that he never delivered."It's just unfortunate that we had to go to trial to get these convictions and I had to put these elders through the stress of coming into court and testifying in front of a jury," said Deputy District Attorney Sherri Adams.Thompson used the money for personal and general business expenses, Adams said. He was supposed to deposit the funds into trust accounts or insurance policies for his customers."He did not deny that he did not put the money into any trust account or insurance (account)," Adams said.Thompson also used the payments to cover costs of other funerals; some were for families who couldn't afford arrangements but received services on credit.Thompson shut down his business, formerly at 2118 Lafayette St., leaving pre-paid clients in the dark about their investments.Some had given him up to $5,000, Adams said. Most of the victims are on fixed incomes. They had made payments to the funeral home over a period of time or placed it on credit cards."It was very hard on all the witnesses who testified because you're reliving your loved one's death," Adams said. "And others are talking about their own death and how their money is now gone, and how they have to come up with this money again."Adams said there are a number of other victims whose cases against Thompson didn't make it to court.Following the verdict reading, the defense argued for Thompson to remain out of custody until his sentencing, saying he has made a positive impact on so many people in the community.San Joaquin County Superior Court Judge Xapuri Villapudua said it was clear Thompson did have support in the community. Villapudua did not remand him to jail immediately, she said, because she does not feel he is a danger to society.Thompson, who declined to comment, is scheduled for sentencing April 8. He falls under AB109 state sentencing for "non-serious, non-violent, non-sexual" offenses, meaning he will either do time at the county jail or county supervision, or a combination, instead of heading to a state prison.A jury found him guilty of five counts of theft from an elder, four of them felonies and one a misdemeanor; felony grand theft for money owed to Lodi Memorial Cemetery; and two other misdemeanors, including elder abuse.Prosecutors want the public to learn from this case to protect themselves from predatory funeral businesses. Double-check and verify pre-arrangements. Contact the insurer, the cemetery and the trust, they said.Contact reporter Jennie Rodriguez-Moore at (209) 943-8564 or [email protected]. Visit his blog at recordnet.com/courtsblog.
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Let the sunshine into Ohio government By GREG R. LAWSON
Former U.S. Supreme Court Justice Louis Brandeis famously said: “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” In Ohio, the need for the disinfecting sunlight of government transparency and accountability has never been greater.
Amid competing claims about local government funding and state reforms, transparency gives taxpayers the tools they need to understand what their government is doing. Most important, transparency helps them understand what questions to ask government officials. Bills before the General Assembly can take transparency to the next level.
Proposed “Open Ohio” legislation approved by the state House would create a user-friendly, searchable database in the state treasurer’s office. Under the legislation, all checks issued by state agencies to any vendor would be tracked comprehensively.
Companion “DataOhio” legislation before the House seeks to improve the transparency of state and local government. It would require governments to adhere to open-data standards that encourage uniform reporting across jurisdictions. It offers incentives to local governments to meet the technological challenges of such transparency demands.
Other organizations have also worked to elevate government transparency in Ohio. The Buckeye Institute has developed a database that includes the salaries of state employees, selected local government workers, public school teachers, and employees of four-year public universities.
Since the database launched in 2010, it has attracted more than 11.1 million searches on our Web site, buckeyeinstitute.org.
Many other groups in the state now offer similar services, including the state treasurer’s office.
Yet more information can and should be readily accessible to taxpayers. The information Ohioans need to understand how their local governments are performing goes far beyond salary figures.
Taxpayers should have access to data on local government spending, revenue, and debt. Most of that data is available in various formats through public-records requests, but little to none of it is easy to use.
State and local governments produce comprehensive annual reports, but people who lack financial backgrounds will find them hard to read. The information in these reports is not standardized, making it difficult if not impossible to compare spending by different government bodies.
Responses to records requests vary greatly. Even when governments intend to comply, the information they produce is frequently incomplete or hard to follow. People who seek public data from smaller governments, including Ohio townships, commonly get handwritten notes in response instead of spreadsheets or printed pages.
Ohio is behind the curve in offering the kind of robust transparency tools that other states and governments use. Texas’ Office of the Comptroller (texastransparency.org) and the New York City Comptroller’s Office (checkbooknyc.com) have two especially good tools. The quality and ease of use of other sites vary, but they illustrate the strong desire for transparency among taxpayers nationwide.
Ohio needs major reforms to recapture its status as an economic powerhouse. To that end, understanding how local governments operate is essential.
It is time for Ohio to benefit from the sunlight of taxpayer scrutiny, which will disinfect the budgets of state and local governments.
Greg R. Lawson is Statehouse liaison and policy analyst for the Buckeye Institute for Public Policy Solutions, a free-market research organization in Columbus.
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Date Set For Federal Judge To Hear Motion To Dismiss Lawsuit In Spierer Case
Last updated on Monday, November 4, 2013
(INDIANAPOLIS) - Attorneys have set a December 2 date for a federal judge to hear a motion to dismiss the lawsuits filed against those accused of being involved in the disappearance of Lauren Spierer.
Federal judge Tanya Walton Pratt will rule in the case. Spierer's parents Robert and Charlene filed the lawsuit in May.
Lawyers for Corey Rossman, Michael Beth and Jason Rosenbaum maintain Lauren Spierer's parents have no evidence that their daughter has died or that the men were involved in her death.
The lawsuit claims the three men, IU students at the time, gave 20-year-old Spierer alcohol and then failed to make sure the intoxicated and incapacitated woman made it back to her apartment safely after a night of partying in downtown Bloomington. The Greenburgh, N.Y., native vanished early on June 3, 2011. All three men now live outside of Indiana
Spierer's parents have long maintained that the men haven't fully cooperated with investigators and hope the lawsuit will force them to answer questions under oath. The suit claims the three men gave Spierer alcohol despite the fact she was already intoxicated and allowed her to walk home alone.
The suit alleged the men's negligence resulted in Spierer's disappearance, injury and death of the Indiana University student.
The men's attorney claim Spierer's parents have no proof because Spierer hasn't been found.
They cited Indiana's law that a missing person cannot be claimed as dead for seven years after his or her disappearance.
No criminal charges have been filed in Spierer's disappearance and there's been no sign of her despite numerous searches around Bloomington and the surrounding wooded countryside that's dotted with lakes and water-filled old limestone quarries about 40 miles south of Indianapolis.
The men's attorney also claim they had no legal responsibility to care for Spierer and her disappearance was not forseeable.
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Jo Scott, abortion protester, found guilty of violating clinic bubble law -- again
Wednesday, April 6, 2011 at 10:57 a.m.
Jo Scott in 2008. A
The 2008 feature "Planned Parenthood's Scheme to Bust Abortion Protesters" focused on longtime pro-life advocate Jo Scott. That August, she was convicted of violating the state's "bubble law," which prohibits anti-abortion types from coming within eight feet of anyone in a hundred-foot radius of a clinic without their okay. Her 180-day prison sentence was suspended so long as she didn't repeat the feat for a year. Now, though, Scott's back with a guilty verdict -- and a case of déjà vu.A year ago this month, according to the Denver District Attorney's Office, Scott approached a woman going to a Planned Parenthood facility in Denver in a manner that presumably punctured the bubble. The result: two misdemeanor charges that carry a maximum penalty of six months behind bars.Related StoriesSix Myths About Abortion From Katha PollittDon't expect the prospect of such a sentence to dissuade Scott from continuing her crusade. Three years ago, she told former Westword writer Sean Cronin that she "occasionally might take a step too close" to a Planned Parenthood employee, but she was willing to risk punishment because "I serve God. I don't serve man."She added that she considers herself a hero, noting, "If I were a fireman and I saved three lives in a day, I'd be on the news!"Well, she's in the news today -- but for a different reason. Here's the DA's office release. PROTESTER FOUND GUILTY A woman from Winter Park who regularly protests at abortion clinics was found guilty today by a Denver County Court jury of two misdemeanor counts related to an incident that occurred last year. Jo Ann Scott (dob: 07-27-52) was found guilty of engaging in prohibited activities near a health care facility (M3) and harassment (M3). A Class 3 misdemeanor carries a maximum penalty of 6 months in the Denver County Jail. Scott was arrested outside of the Planned Parenthood Healthcare Facility at 7155 East 38th Ave on April 2, 2010 after unlawfully approaching a woman who was entering the facility. Denver Deputy District Attorney Blake Harrison and Deputy District Attorney Jason Kramer tried the case. Scott is scheduled to appear for sentencing in Denver County Courtroom 3B at 9:00 a.m. on June 6, 2011. Note: The original version of this post stated that Scott pleaded guilty. Sorry for the error.More from our News archive: "Warren Hern, Boulder abortion doctor, is 'pissed,' fears violence as Sacred Heart of Jesus protests clinic."
Videos of Denver Police Taking Blankets From Homeless Have...
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On Taqlid: Ibn Al Qayyim's Critique of Authority in Islamic Law
Abdul-Rahman Mustafa
Buy Despatched in 5 to 7 days. Abdul-Rahman Mustafa offers a deft new translation of a large extract from the book I'lam al Muwaqqi'in 'An Rabb al 'Alamin, by the thirteenth-century Islamic scholar, Ibn Qayyim al Jawziyya. The I'lam comprises an extensive discussion of the subject of taqlid, or legal imitation. It is one of the most comprehensive treatments of Islamic legal theory and even today serves as a manual for mujtahids and muftis. In the portion of the I'lam Mustafa has translated, Ibn Qayyim introduces the nature of taqlid and divides it into several categories. He then provides an account of a debate between a critic of the view that taqlid of a particular school or a scholar is a religious duty and this critic's interlocutor. Among the topics discussed are the different kinds of taqlid, the differences between taqlid and ittibi', the infallibility of religious scholars, the grounds on which one legal opinion might be preferred over another, and whether or not laymen can be expected to perform ijtihad. Ibn Qayyim's legal theory is a formidable reformulation of traditionalist Hanbalism, a legal-theological tradition that has always maintained a distinctive character in Islamic history and that is now growing more influential due to modern interest in the Wahhabi movement and in Ibn Taymiyya, whose legal and theological thought was edited and refined by his student, Ibn Qayyim. In his introduction to the translation, Mustafa critically reviews the scholarship on taqlid and outlines Ibn Qayyim's legal theory and the importance of taqlid within it. Taqlid continues to generate controversy amongst educated Muslims and particularly academics, as Salafi interpretations of Islam, which are generally 'anti-taqlid,' come into conflict with the generally 'pro-taqlid' stance of traditional schools such as the Hanafis. Mustafa's translation of a classic account of Islamic legal theory and strong critique of the dominant legal culture are timely contributions to an increasingly heated debate. Subjects: Islamic Law
Contents: ACKNOWLEDGEMENTS INTRODUCTION AN EXPOSITION ON IMITATION A DISPUTATION BETWEEN AN IMITATOR AND HIS ADVERSARY GLOSSARY NOTES BIBLIOGRAPHY INDEX Terms and Conditions Shipping and Tracking © 2004-2016 Wildy & Sons Ltd. Site designed by
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What is Software Infringement?
Software infringement refers to the illegal copying, sale or distribution of a given piece of patented software. It is a form of interference with intellectual property rights. Since most software is patented, software infringement is generally a violation of patent law. Intellectual property is protected by a series of different laws and legal concepts. Original works of authorship such as art and music that serve an entertainment purpose only are protected under copyright. Identifying marks that represent a brand are protected under trademark. Functional ideas or inventions, such as software, are protected under patents.
A patent gives the creator of the given intellectual property — the functional idea or invention — the exclusive right to make, distribute, license or profit from that product. The purpose is to protect the creator's interest in profiting from his hard work in developing the product. Since a piece of software or other patented property isn't necessarily a tangible item, which means someone could make a copy of the item without taking the original copy from the creator, the patent prohibits anyone from using the same concepts or formula to create the item without permission. Ad
Microsoft software, for example, is patented. This is necessary because otherwise someone could make millions of copies of a Microsoft Windows CD and sell those to others for much less than Microsoft charges for its product. Although Microsoft would still have its original discs it produced containing the software, it would suffer a financial loss and be unable to benefit from the creation of its product as a result of the malicious behavior. When someone violates a patent by making or distributing software illegally, software infringement occurs. The owner of the patent can then file a lawsuit to sue for the damages he sustained as a result of the infringement. The patent owner can also get an injunction, which is a court order to stop the infringing behavior. Software infringement refers only to unauthorized sales and copies. If a person buys a copy of a software program, decides he does not like it, uninstalls it and sells the original copies of the disc, that does not constitute software infringement since the manufacturer was paid for the software item and no theft or unauthorized copying or distribution took place. On the other hand, if the individual allowed others to download the software from his computer or made copies of the discs and distributed them, this would be an example of software infringement. Ad
What Does a Software Patent Attorney Do?
What is a Software Patent?
What is Software Law?
How do I Choose the Best Patent Infringement Lawyer?
What are Infringement Damages?
What are Trademark Infringement Damages?
What is Infringement Litigation?
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Freeholder Gary J. Rich Sr. Telephone: 732-683-8559Click here to email
Gary J. Rich, Sr. was elected to the Board of Chosen Freeholders in November 2011. He was sworn in to office on Jan. 5, 2012. As the Freeholder responsible for the oversight of Finance and Administration, Freeholder Rich oversees those departments that are at the core of Monmouth County government operations and has focused his tenure in office on delivering strong fiscal management and efficiency in operations to Monmouth County taxpayers.
Since his election to the Board of Chosen Freeholders, Mr. Rich has worked with his fellow Freeholders and Senior Staff to:
Maintain a zero-increase to the tax levy (now 3 years in a row), by asking department heads and their staffs to analyze the best ways to maximize their output with fewer dollars each year Oversee the rollout of new purchasing and personnel/payroll systems which seamlessly integrate and communicate with the each other, allowing our departments to operate with optimum efficiency Renew the County’s focus on its Strategic Plan which identifies goals and objectives to strengthen the County’s operations. This includes: a Communications Plan, which was developed to enhance the mission of Monmouth County government by promoting effective, accurate and timely exchanges of information among our diverse audiences and stakeholders an Energy Plan, which is being developed to identify energy efficient practices and projects throughout the County. The idea is simple: decrease the County’s energy consumption, lower the County’s energy expenses, save the taxpayers money and do our part to curb the County’s impact on the environment, all while making strides towards hardening our infrastructure to make the County less susceptible to the next Superstorm.
Lead the charge on analyzing the viability of maintaining or privatizing the County’s Care Centers Assess the County Library System to create a business plan that ensures sound economic management and top-notch service Oversee the implementation of the new Real Property Assessment Demonstration Program by the Monmouth County Tax Board which will save $7.5 million over 10 years in costs to perform re-evaluations. The new program helps municipalities eliminate the guesswork involved in budgeting for tax appeals AND empowers property owners with real-time information about the value of their property.
Freeholder Rich, a resident of Spring Lake, began his career as a schoolteacher working at St. Rose Elementary School in Belmar, Freehold Borough Middle School and Marlboro Middle School. In 1979 he left teaching and began working for several major corporations in the computer business, becoming President of Atlantic Systems.Before serving office at the County level, Mr. Rich was elected to public office four times. In 1980, he was elected to the council in South Belmar, which today is called Lake Como. After moving to Spring Lake, he was elected to the Borough Council where he served for three terms. Mr. Rich served on the Spring Lake finance committee for several years and helped Spring Lake avoid tax increases and increases in the municipal budget. This effort was accomplished maintaining a superb level of public services while rebuilding an aging infrastructure that had a 100-year-old water and sewer system. Additionally, as a councilman he served on many committees including Public Safety, Traffic Safety, Planning Board, Beach Committee, Board of Health and the Water Sewer Advisory Committee.Mr. Rich currently works at a Fortune 500 company as an Account Executive. He lives in Spring Lake with his wife, Ann, of 34 years. They have three children, Gary Jr., Steven and Devin. Government HomeBoard of Chosen FreeholdersAdministrative Code County ClerkClerk of the Board SheriffSurrogateProsecutor Elected OfficialsCompetitive Bidding OPRA Freeholder Meeting AgendaDepartmentsCounty AdministratorFreeholder Meeting ScheduleMeeting MinutesBoards & Commissions
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About the Department Index
When Illinois first became a state in 1818, state government was comparatively small and insignificant. In 1873 the Department of Index under the Secretary of State was created. The Department's duties were to "make and keep proper indexes to the executive records and all public acts, resolutions, papers and documents" filed with the Secretary of State (Rev. Stat. 1874, p. 986).
Today, the Index Department performs more than 100 statutory duties. The department commissions notaries public, registers lobbyists and records their expenditures, maintains Statements of Economic Interest, issues apostilles and certificates of incorporation for municipalities, certifies special municipal censuses and the federal census and issues certificates of election for judges, all elected state and county officials and is the keeper of the Great Seal of Illinois.
In addition, the Index Department maintains all state agency rules and publishes the Administrative Code and quarterly updates of the Illinois Register, serving as a state clearinghouse and central repository for the daily business of state government. The department houses libraries of information including a complete collection of state agency rules and regulations both past and present, official transcripts of floor debate for both houses of the Illinois General Assembly, and maintains hundreds of miscellaneous public documents vital to the interests of the State of Illinois and its citizenry.
The Index Department derives its mission directly from the Illinois State Constitution, which states: "The Secretary of State shall maintain the official records of the acts of the General Assembly and such records of the Executive Branch as provided by law.
Administrative Division
The division is responsible for the overall management and direction of the various divisions within the department. Duties include the development and administration of the department's budget, the hiring, supervision and evaluation of its personnel and the operation of its data processing needs.
Administrative Code Division
A prime responsibility of the Secretary of State is to serve as the filing agency for all state agency rules and regulations. The Administrative Code Division maintains a complete library of all such rules, both rescinded and current, dating back to the 1930's.
Department publications include:
Administrative Code and Illinois Register Style Manual
Administrative Code Indexes — Weekly Update
Administrative Code Rulemaking Templates Codification Indexes — Weekly Update
Illinois Register — Weekly Update
Illinois Register Order Form
If you have inquires about rules or ordering a Part, please contact:
Department of Index
111 E. Monroe St.
Lobbyist Division
This division is responsible for processing the registration and expenditure report filings for Illinois lobbyists and businesses that employ lobbyists. There are approximately 2,137 lobbyists and 1,689 lobbying entities registered with the Index Department as of December 2006. As of January 2006, lobbyist registration has been performed electronically, while the second phase of the project, electronic filing of lobbyist expenditure reports, begins in January 2007. In addition, since Secretary White took office in January 1999, this web site has been updated to include the Lobbyist Registration Act, the Annual Registration Guide, Expenditure Report Filing Guide, corresponding rules, daily update of the searchable database and the registered lobbyist list. Visit Lobbyist Activities
Notary Public Division
The active notaries public in Illinois have been appointed and commissioned by the Index Department. In addition are the controlling authority for specialty notarization, Certificates of Authority, Certificates of Incumbency and Apostilles. Visit Notary Services
Public Documents Division
The Public Documents division is made up ofo two sections: Governmental Ethics and Public Documents.
Government Ethics — Administers the Illinois Governmental Act, the Ethics Section maintains the statements of economic interest filings of all elected and appointed governmental officials and state employees who hold decision-making positions in the execution of contracts, spending of public funds and issuing of state licenses and permits.For questions or further information on Governmental Ethics please contact:
111 E. Monroe
Public Records — Maintains the state's official records of the Governor's appointments to boards and commissions and a myriad of miscellaneous public documents, including official pardons, municipal incorporations, oaths of office, credit service organization registrations, home rule referendums and mass transit district registrations and audits. View Public Records Listing
For questions or further information, please contact:
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USCIS Liberalizes And Amending Rules For I-751 Petitions To Assist In Timely Filing And Deal With Changed Circumstances After Filing
by Alan Lee, Esq.
In a recently released memorandum dated April 3, 2009 by Donald Neufeld, Acting Associate Director of U.S.C.I.S. titled, "I-751 Filed Prior to Termination of Marriage," the Service has finally given an avenue of relief for two confounding questions in this area: In a recently released memorandum dated April 3, 2009 by Donald Neufeld, Acting Associate Director of U.S.C.I.S. titled, "I-751 Filed Prior to Termination of Marriage," the Service has finally given an avenue of relief for two confounding questions in this area: What option does a conditional resident have where he/she is separated but not divorced, the deadline is coming up for filing the I-751, and the U.S. citizen spouse will not consent to sign a joint petition?1 Is it possible to change the character of the I-751 filing from one ground, e.g. joint filing to divorced but having had a bonafide marriage, once it has been submitted? On the first issue, the answer previously was that the conditional resident was stuck until the time that he/she could obtain the divorce and then file a late I-751 to have the conditional basis of residence removed. In the interim of course, U.S.C.I.S. could issue a notice to appear (NTA) for the individual to appear in the immigration court for a removal hearing. In the past Service memorandum of April 10, 2003, "Filing a Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage" the Service had reiterated that there is no waiver of the joint filing requirement based solely on the fact that a conditional permanent resident may have entered the marriage in good faith, but that he/she was legally separated from the petitioning spouse or was currently in divorce or annulment proceedings. Also that an individual caught in that situation was not allowed to apply for a waiver on the basis that the qualifying marriage was entered into in good faith by the alien spouse, but that the qualifying marriage had been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the requirements of a joint filing. In the new memorandum, while not expressly approving the practice, the Service states that if an immigration service officer encounters an I-751 on the basis of termination of a marriage, but that the alien is currently legally separated or in pending divorce or annulment proceedings, the officer is to issue a request for evidence with a response period of 87 days, and that the conditional permanent resident then has the opportunity to establish eligibility for the waiver by submitting a copy of his or her final divorce decree or annulment within the 87 days. Looking at the current processing times of the U.S.C.I.S. service centers (as of July 16, 2009) of 6-7 months to even reach the I-751 filings with the added 3 months to respond, that would give conditional permanent residents a window of approximately 9-10 months from the date of filing to finalize the termination of their marriages. The memorandum states that if the individual establishes eligibility for the waiver within that period, the immigration service officer adjudicates the petition on the merits in accordance with established procedure. If such cannot be done, the regular procedures would ensue such as denial of the I-751, issuance of a notice to terminate the conditional residence status, and ultimately the issuance of a notice to appear. The memo also notes that in denying the I-751 for this reason, the immigration service officer will also notify the individual that he/she may be able to establish eligibility for a waiver before the immigration judge in the event that the marriage is terminated during the pendency of removal proceedings. On the second issue - changing the ground of I-751 waiver once the application has been submitted - U.S.C.I.S. offices have had disparate policies in the past with some allowing a change to be made on the pending I-751, and others stating that the petitioner must refile the I-751 and await its adjudication. In a case that we had a few years ago involving the joint filing of an applicant whose wife passed away after I-751 filing and was scheduled for interview, the New York office of U.S.C.I.S. held the interview, expressed condolences to the applicant, would not accept an amendment to the pending petition or new filing with fee locally, but held the file during the time that a new I-751 with fee was accepted and adjudicated at the Vermont Service Center. The new memo appears to speak to this situation in allowing an applicant who has filed a joint I-751 petition to change the character of the petition if the immigration service officer issues a request for evidence where the petitioners are separated or have initiated divorce or annulment proceedings. Where the immigration service officer specifically asks the individual to provide a copy of the final divorce decree or annulment along with a request stating that he/she would like to have the joint filing petition treated as a waiver petition, the conditional permanent resident is afforded an opportunity within the 87 day response period to provide evidence that proceedings have been finalized and it gives him/her an opportunity to request a waiver to the joint filing without refiling. In such case, the immigration service officer is to amend the I-751 petition to indicate that the individual is eligible for a waiver of the joint filing requirements based on termination of marriage and adjudicate the petition on the merits in accordance with established policy. The importance of the memorandum is to allow conditional permanent residents who are only separated or in divorce or annulment proceedings to timely file for a waiver based upon a bonafide yet terminated marriage by themselves without having to ask the U.S. citizen spouse to sign a joint petition, and to later provide evidence of final marriage termination upon receipt of a request for evidence from U.S.C.I.S. It also gives immigration service officers the authority to amend the basis of I-751 filing rather than making conditional permanent residents refile and pay new fees for another I-751. These are welcome changes. This article © 2009 Alan Lee, Esq. End Notes
1Under Section 216(c) of the Immigration and Nationality Act, the conditional basis of resident status can be removed through an I-751 petition through 1. a joint filing of husband and wife; or 2. if the alien entered the marriage in good faith but the spouse subsequently died; or 3. if the alien entered the marriage in good faith, but the marriage was later terminated due to divorce or annulment; or 4. if the alien entered the marriage in good faith and has remained married, but has been battered or subjected to extreme cruelty by his/her U.S. citizen or permanent resident spouse; or 5. if termination of the alien status and removal would result in extreme hardship. Numbers 2-5 do not require the signature of the petitioning U.S. citizen spouse on the I-751.
Alan Lee, Esq. The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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Posted August 17, 2010 11:16 pm - Updated August 19, 2010 01:30 pm By Jessie-Lynne Kerr Virginia Q. Beverly, 1926-2010: Retired circuit judge had many milestones
Former assistant U.S. attorney, private practice lawyer died of pancreatic cancer. Beverly Retired Circuit Judge Virginia Quinlivan Beverly, a former assistant U.S. attorney and lawyer in private practice before being named to the state bench in 1977, died Tuesday of recently diagnosed pancreatic cancer at the McGraw Center for Caring of Community Hospice of Northeast Florida. She was 83.Services are pending.Judge Beverly set many "firsts" throughout her life but said she never planned it, she just stumbled into everything. Her priorities, she said, were her family and the community."Judge Beverly brought a grace and charm that complimented her obvious determination to see that justice was done and that the business of the court was handled appropriately," said retired Florida Supreme Court Justice Major B. Harding, who was chief judge in Duval County when Judge Beverly was appointed to the bench in 1976 and administered the oath to her."I was privileged to call her my friend and have contact with her not only during our time together on the circuit bench but since then," he said. "She will be missed."Born Oct. 20, 1926, and reared in Wilmington, N.C., Judge Beverly received a B.S. degree in 1948 from St. Joseph College in Emmitsburg, Md. She returned to Wilmington and began social work handling welfare adoption cases. Encouraged by a supervisor to attend graduate school, she enrolled at the University of North Carolina at Chapel Hill studying child welfare. She soon decided she didn't want to make that her career and switched to its law school.When she graduated in 1953, she was one of two women in a class of 150. She was the first woman lawyer hired by the Atlantic Coast Line Railroad and then went to work for a Wilmington law firm. After her marriage in 1954, she continued working part-time when her first of three of her four children were born.In 1960, her husband, Philip C. Beverly, an attorney with the railroad, was transferred from Wilmington to Jacksonville, and she stepped away from the practice of law.After a five-year hiatus, she and her husband took and passed The Florida Bar exam. The Beverlys were the first couple to pass the bar at the same time.Judge Beverly began working in 1965 as an assistant U.S. attorney. Three years later, she was the first woman lawyer invited to join the Jacksonville firm of Martin, Ade, Birchfield and Johnson. She remained with that firm until being appointed to the bench by Gov. Reubin Askew in December 1976.Mary Cousar Coxe was an assistant state attorney assigned to prosecute cases before Judge Beverly and recalls the judge was a "genteel lady from a silk stocking law firm with limited criminal court experience."Prosecutors, defense attorneys and defendants didn't quite know what to expect from the judge, Coxe said."She lulled the defense into a false sense of security. I am sure they thought this sweet little lady would not hurt a fly, much less put Bubba in the jail or the prison farm. Then she would throw the book at them," Coxe said.But the judge also was compassionate, and those who deserved mercy were granted a second chance, the former prosecutor recalled.Judge Beverly was a devout Catholic and before being appointed to the bench served on St. Vincent's Hospital Advisory Board.In 1983, she was the first president of a new all-female Uptown Civitan Club. The club's membership was not restricted to women, but Jacksonville's other Civitan Club had never admitted a woman. Six years later, the Uptown club was named the world's No. 1 Civitan Club.Judge Beverly was one of five Jacksonville women honored for her achievements by the Mayor's Commission on the Status of Women in 1989.In 1998, Judge Beverly was the recipient of the Law and Spirituality award from the Catholic Lawyers Guild of the Diocese of St. Augustine. She was honored by the Women's Center of Jacksonville and Women's Digest on Equal Pay Day 2007 with The Pioneer Award recognizing her for personifying the spirit of "Rosie" (the Riveter) by breaking down gender barriers during her career."She was a great mom to us," said a son, Philip Beverly Jr. of Gainesville, "and a wonderful wife to dad."Her husband of 46 years died Jan. 15, 2001. In addition to her son, she is survived by three children: Laura Beverly, a Jacksonville pediatrician; Circuit Judge Thomas Beverly of Jacksonville and Fred Beverly of Ashburn, Va.; and seven [email protected], (904) 359-4374 Topics Obituary Advertisement
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D.C. To Consider Screening Proposals
An announcement from the web page of the District of Columbia Bar:
D.C. Bar Rules of Professional Conduct Review Committee is soliciting public comment on whether Rule 1.10 (imputed disqualification) of the D.C. Rules of Professional Conduct should be revised.
In February 2009, the ABA adopted amendments to Model Rule 1.10 to permit ethical screening with certain notifications and certifications—without client consent—of lateral lawyers who have moved between private organizations. In light of the ABA’s action, the Rules Review Committee established a subcommittee to consider whether to recommend an expansion of lateral screening for the District of Columbia. The committee has not yet decided whether to make a recommendation on this subject to the Bar’s Board of Governors. To inform its consideration, the committee hereby requests comment from the Bar and public on the following issues: Should the District adopt the amended model rule approach and permit an individual lawyer moving between private sector jobs to be screened from matters in which the lawyer’s new law firm or other organization is adverse to his or her former client? If so, should the governing rule be: The ABA Model Rule formulation, The committee’s draft formulation (which contains several possible variants on post hoc reporting), or Another formulation, perhaps one that attempts to take into account the degree or significance of the individual lawyer’s involvement in the former matter? This link will take you to the particulars. (Mike Frisch)
May 27, 2010 in The Practice | Permalink
Strong Words
The Missouri Supreme Court discharged a finding of criminal contempt against an attorney for "strong words he used in petitioning the court of appeals for a writ to quash a subpoena issued for a grand jury..." The attorney accused the prosecuting attorney and judge overseeing the grand jury of a conspiracy to "threaten, instill fear and imprison innocent persons to cover-up and chill public awareness of their own apparent misconduct using the power of their positions to do so."
The attorney was found guilty of criminal contempt by a jury and was sentenced to 120 days in jail. The court here held that the essential elements of contempt initiated by a judge against an attorney include a false statement, made either knowing of the falsity or in reckless disregard of truth or falsity and an actual or imminent impediment or threat to the administration of justice. (Mike Frisch)
Scrivener for Lawyers
Posted by Jeff LipshawI don't ever do solicited product endorsements but my son-in-law Simon, IT guru and Mac aficionado, referred me some time ago to a writer's program called Scrivener, which I now use to organize notes and sources on my writing projects. Simon passed along this link that discusses how Scrivener might be helpful to lawyers.
May 2, 2010 in The Practice, Web/Tech | Permalink
Take Note
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion about whether a lawyer’s notes must be turned over to a client when requested.
Opinion 2010-2 addresses the following question: “Are a lawyer’s notes of an interview with a current or former client considered client papers to which the current or former client is entitled upon request?”
The opinion finds that it depends upon whether “the notes are items reasonably necessary to the client’s representation” pursuant to Prof. Cond. Rule 1.16(d), which requires the lawyer to exercise his or her professional judgment.
For example, the opinion states that: “A lawyer’s notes to himself or herself regarding passing thoughts, ideas, impression, or questions will probably not be items reasonably necessary to a client’s representation. … But, a lawyer’s notes regarding facts about the case will most likely be an item reasonably necessary to a client’s representation.”
The opinion also states that a lawyer may ethically redact portions from the note not reasonably necessary or prepare a note for the client that contains only the necessary items needed for representation.
(Mike Frisch)
April 20, 2010 in Clients, Law & Business, The Practice | Permalink
Six Sigma at Seyfarth Shaw
By legalprofession blogger
[posted by Bill Henderson]Here is a link to a very interesting American Lawyer video interview of Seyfarth Shaw Managing Partner J. Stephen Poor on his firm's adoption of Six Sigma methodology, Many things in the interview are noteworthy:
Seyfarth is making a significant long-term investment in time and money -- the subtext is that it is reducing short term profits. Most large law firms don't make such long-term investments in human capital and business processes. Moreover, the initiative is not new; it began five years ago.
The eventual payoff is designed to be a second order effect of serving clients. As Stephen Poor notes, the Six Sigma approach benefits clients by making them more competitive. "And what is good for our clients is what is good for Seyfarth." Seyfarth claims that Six Sigma has enabled it to grow client relationships. Many of Seyfarth's competitors focus primarily on profits -- to keep partners from leaving -- rather than clients.
This business process approach has the potential of institutionalizing clients because lateral partners cannot replicate Seyfarth's efficiencies at their next firm. Moreover, Six Sigma in law firms is probably scalable. So if its price/quality combination takes off, Seyfarth can take market share from competitors.
As Poor notes, Six Sigma is not limited to certain practice areas -- it applies to certain portions of all practice areas. This observation suggests that Seyfarth has carefully examined its work flows in a way that enables the firm to speak to clients at a very sophisticated level. Most GCs these days are talking about disaggregation of their legal matters, which is the first step in optimizing (i.e., stretching) their legal budget.
Seyfarth appears to be behaving like a business rather than a law firm. It has a long term market differentiation strategy that is not based on specializing in "high-end", "bet-the-company", "non-commodity" work. In other words, it is heading in the opposite direction of most Am Law 100 firms. If law firms could sell stock, I would be interested in taking a long position on Seyfarth. One final note: much of the what Stephen Poor has to say is understated. Seyfarth Shaw's managing partner is branding his firm without bragging, which is a subtle but valuable skill. April 14, 2010 in The Practice | Permalink
Stupid lawyer tricks, part n
From the Attorney e-Newsletter of the Supreme Court of Pennsylvania's Disciplinary Board's March 2010 issue:Also, 12 attorneys paid their annual fees with checks marked as drawn on a trust or escrow account, prompting an immediate inquiry from Disciplinary Counsel.[2] Eighty-seven paid with checks drawn on insufficient funds; four of which were still outstanding at press time. Not smart.And footnote 2 itself is classic: "[2] The ethical equivalent of a 'Please kick me' sign."Couldn't make this stuff up if we tried. Hat tip to my buddy Scott Unger for this one.(Posted by Nancy Rapoport.)
April 2, 2010 in Bar Discipline & Process, Professional Responsibility, Rapoport, The Practice | Permalink
Lipshaw on Judgment (and Metaphor)
Posted, written, directed, produced by, and starring, Jeff Lipshaw
I hope you have the point. I have decided that the article I've been working on (February is the hardest month, isn't it?) has, sometime in the last several days, passed not only the point of minimal coherence, but is indeed ready to leave the womb, sink or swim, fend for itself. I am hoping it takes care of me in my old age. Seriously, folks (ta ta boom), The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity is up on SSRN (in the spirit of "tomorrow's research today, not completely complete, but getting there, subject to post-production), now that I've decided what to leave on the cutting room floor. It is the basis of the last part of my book-to-be (in utero), Lawyering and the Mystery of Judgment. If you get the idea that metaphors have something to do with the point, you win the kewpie doll. What I've tried to do is exploit what is my niche - bridging the real world and the academy - and it is recursive in exactly the way I tend to think of the world: how do we make judgments that bridge or fall between disciplines? Those are interdisciplinary judgments, but is there a skill that focuses on those kinds of judgments, meaning that we are dealing with an even higher order concept, namely metadisciplinarity? Which academic department grants a Ph.D. in that? (The fact that TypePad has just put a dotted red line under metadisciplinarity makes me hopeful I've coined a term!) What I have tried to do is spice the theory with many real world examples, admittedly anecdotal, but also, I think, typical. I will look forward to comments, because I have tried to be provocative, especially with regard to the pitfalls of "thinking like a lawyer", and the education that takes us there.
The abstract follows the fold.
Continue reading February 11, 2010 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, General Counsel, Law & Business, Law & Society, Lipshaw, Straddling the Fence, The Practice | Permalink
New Montana Rules Proposed
The Montana Supreme Court has issued an order setting a 90-day period for comments on a petition filed by the State Bar Board of Trustees and the Ethics Committee to revise and amend three rules that deal with attorney advertising and solicitation. The proposed amendments would, according to the petition, clarify disciplinary jurisdiction over attorney advertising, specifically identify types of misleading communications and recognize that the state has no procedure to "qualify" a lawyer referral service. (Mike Frisch)
January 11, 2010 in Current Affairs, Hot Topics, Law & Business, Law & Society, The Practice | Permalink
Authority Arguers (Litigating Lawyers) Versus Authority Creators (Transactional Lawyers): It's Still All Outside-In
Posted by Jeff LipshawSome time ago, I wrote an article, largely in reaction to an article Richard Posner had written on contract interpretation, suggesting that there was far less connection than commonly expected by lawyers between a “mutual intention of the parties” supposedly embodied in even a heavily negotiated contract and subsequent colorable disputes involving interpretation of that same contract (see The Bewitchment of Intelligence). Having immersed myself for the last several months in scholarship (such as it is) on consciousness, judgment, and wisdom, I now realize that Bewitchment merely took on one particular manifestation of the objective, rational model that is the teaching, scholarship, and practice of American law. I am prepared to expand the thesis. I will defer exposition of my own articulation of the difference between arguments from authority and arguments from merit (in process) to Professor Geoffrey Samuel's (Kent, left) more sociological exposition of the same point: the reason it is hard to take law seriously as a “science” (and, I would add, the reason the explanatory so often blurs into the normative) is that law is, and has always has been, based on an “authority paradigm,” more akin to theology than to science. The authority paradigm is the key thing, because authority must come from somewhere: from the standpoint of mind, authority is "outside-in." That distinguishes it from wisdom and judgment, which, from the standpoint of mind, are "inside-out." (Pardon my Kantian tendencies here, but outside-in strikes me as legislating, or heteronomous, while inside-out strikes me as self-legislating, or autonomous.)Let me bring this back to the practice of lawyering, rather than just the theory of law. We are in the midst of working through our curriculum on transactional skills, and the first building block is, invariably, “contract drafting.” I realize I am treading close to heresy here, and I don’t intend to suggest that contract drafting isn’t one of the transactional lawyer’s core skills. But it dawned on me (again) this morning, as I was reading an essay by Laura Dunham (University of St. Thomas, right) on business ethics in entrepreneurship, that even contract drafting (as a lawyering skill) fails to get at the critical difference between judgment and lawyering. Most of what lawyers think and do (at least classically) either in the litigation or the transactional setting constitutes a category error when it comes to the exercise of judgment (in the everyday and not judicial sense). As I argued in Objectivity and Subjectivity in Contract Law, the fundamental dividing line as between promise and contract doesn’t have to do with efficiency or morality; it has to do with objective versus subjective, or public versus private, or (perhaps?) inside-out versus outside-in. The paradox of law in the litigation context is that both parties are praying to the same god for victory in the name of justice. The Europeans (like Luhmann or Derrida - at least in the latter's views on justice) expose an uncomfortable possibility: it is not an appeal to justice; it is an appeal to authority with the patina of justice. That’s what we teach first year lawyers: how to make an argument - the best ones being those that satisfy the Dworkinian standard of integrity: fit and justification (i.e., they give the best appearance of being not only just, but consistent with authority). Contract drafters aren’t authority arguers; they are authority creators (in the sense of the private law that is the law of contracts). There is no real connection between the contract and the later dispute (despite the arguments of Judge Posner, Professors Schwartz and Scott, and other rationalists), except in the sense that words that were written will come to constitute whatever “law” there is. Judgment and wisdom, on the other hand, require that we step back from the authority paradigm (and perhaps also from the self-interest paradigm). That’s the quality that comes after first year doctrine, contract drafting, and deal skills. It means somehow teaching the inside-out rather than the outside-in. Now here’s the tough question: what are the academic and professional bona fides for teaching that advanced course?
December 11, 2009 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, Law & Society, Straddling the Fence, The Practice | Permalink
Ohio Changes Pro Hac Rules
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today announced the adoption of amendments governing out-of-state attorneys who want to appear temporarily in a proceeding in Ohio (pro hac vice). The amendments, which were adopted by a 6-1 vote by the Supreme Court, become effective Jan. 1, 2011.
Amendments to Gov. Bar R. XII of the Rules for the Government of the Bar will:
Centralize the administration of pro hac vice admission through the Supreme Court’s Office of Attorney Services. Pro hac vice is a privilege granted by a tribunal to out-of-state attorneys not admitted to practice law in Ohio to appear before the tribunal on a limited basis. Establish basic criteria for appearing pro hac vice before a tribunal, including acknowledgement of Ohio’s attorney disciplinary rules and a statement that the attorney has not appeared more than three times in a calendar year in a pro hac vice capacity. Permit the administrative revocation of privileges to practice pro hac vice if the attorney does not comply with certain provisions of the rule. Require an out-of-state attorney to file an application and $100 annual registration fee before applying to appear pro hac vice. Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp concurred in adopting the amendments. Justice Paul E. Pfeifer dissented.
View the new amendments.
November 10, 2009 in The Practice | Permalink
Law Practice Technology
Posted by Jeff LipshawWe don't endorse commercial products here (usually), and I'm sure I got this is a really a teaser so that the company, AbacusLaw, can sell law firm management software (they'd give the book away, I suspect, but one of the rules of marketing - ask our advanced legal studies people - is that if you give it away, people don't value it).The book is called Dangerous Law Practice Myths, Lies, and Stupidity, and tells 35 little stories - with tltles like "The Two-Calendar Myth," "The Free Advice Myth" (again, no doubt why they are charging for the book), and "The Ivy-League Lawyer Myth" (I think Brown, Dartmouth, and Princeton need to take some umbrage here) - of what the authors contend are myths about law firm management. I leave it to you to decide if they are, but this isn't too bad, and certainly food for thought.
August 24, 2009 in The Practice | Permalink
More from Paul Lippe on the Future of Law Schools
Posted by Jeff LipshawPaul Lippe, who has been an agent provocateur (or thought leader, as they say) on the subject of legal education, has a follow up to his original Am Law Daily commentary to which our Bill Henderson linked a while back. Follow the link and read it for yourself, but I'm not sure if the comments are available if you aren't a member of Paul's Legal OnRamp, so here's mine if you want to hit the "back" button on the browser after you read his column:* * *Like Ray [Campbell, visiting professor at Penn State Law School, who also commented - UPDATE: see his original comments below the fold], I'm a former Big Law partner, and I was the VP & GC of a Fortune 850, NYSE company. I'm less likely than Ray (based on his comments) to try to argue that today's paradigm of legal scholarship has anything more than a passing relevance to the in-the-trenches practice of law. But that's not really the point. Practitioners have to understand that we started down a particular path over a hundred years ago when C.C. Langdell came up with the idea that law could be derived inductively from the reading of cases, akin to the scientific method in other disciplines. (There's a social science term called "path dependency" and it has to do with how hard it is to get off a particular path once you are on it; as an example, if you take a job at the beginning of your career with Weil,Gotshal, you've created different path dependencies for future choices than if you take a job with Sooem & Servem in Elko, Nevada.) Law became a subject for instruction in research universities, not merely for the training of lawyers, and with that developed a community of legal scholars, developing, indeed evolving, their own standards for what constituted advancement in knowledge. For a long time, that had to do mainly with legal doctrine, and academic energy devoted itself to the great treatises, and the great doctrinal advances like the UCC. The problem with comparing law to medicine (as I did, and to which Paul links) is that while the practice of medicine is both art and science, the science is still hard science, and, moreover, the linkage between cutting edge theoretical research and its practical application is far more intuitive. For example, my son has his name on a paper that deals with work on the very subtle science of diabetic neuropathy in cells - how at a molecular and cellular level does the glucose cause the problems it does? Even if the research isn't directed at a cure, we can understand it in the web of scientific research that leads to useful advances and human flourishing. That's far harder to do in law, and one only needs to scan the titles of the last 2,000 or so papers uploaded onto SSRN to confirm the hypothesis. Moreover, there's a lot of work produced and in spotty quality because of two structural features of academic law as it has moved down its particular path: (a) the sheer number of law professors compared to other disciplines, because the training of professionals subsidizes the theoretical pursuits; and (b) the plethora of student-edited (and non-peer-reviewed) journals. In short, law as academic discipline is still finding its place in the world. Given a hundred years of path dependence, however, "solving" the problem of legal education isn't going to occur without some acknowledgment of the academic paradigm. For example, we could certainly, as a logical possibility, move to a world in which most lawyers are trained in vocational institutes, and make theoretical "law and..." part of more traditional humanities and social science Ph.D. programs. But I suspect that most lawyers like their ties to the status of research universities that spawned most of them. Continue reading August 22, 2009 in Comparative Professions, Law & Society, Law Firms, Teaching & Curriculum, The Practice | Permalink
An interesting case from Montana involved a medical malpractice action brought by a widow on behalf of her late husband's estate against a doctor and a clinic. The plaintiff's attorney delivered the closing argument as a first-person narrative that the lawyer described on appeal as "[c]hanneling...as though he was the decedent." When he started to describe what it felt like being autopsied, "[t]his got to be more than some could bear." A juror thought she would pass out and was attended to by the defendant, plaintiff's co-counsel (who is also a physician) and three other jurors who also were nurses. Plaintiff then sought a mistrial, which was denied. An alternate juror was seated and a defense verdict was returned.
The Montana Supreme Court reversed. The jury here saw the defendant "reacting to a real-life situation and apparently successfully delivering life-saving care. The effect on the jury is immeasurable, whether or not the individual jurors admit it or even consciously know it." The court made it clear that "no fault is assigned to any of those who responded to the ill juror in the courtroom." How many of us can say that we were able to get a new trial because our closing argument made a juror violently ill? (Mike Frisch)
Attorney's Liens For Patent Prosecution Work
The Massachusetts Supreme Judicial Court decided the following two questions in the affirmative:
We consider in the present case, as a matter of first impression, the scope of the Massachusetts attorney's lien statute (lien statute), G.L. c. 221, § 50, vis-à-vis patent prosecution work. The United States Court of Appeals for the First Circuit has certified the following questions to this court, pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981) [FN2]: "1. Does [G.L. c. 221, § 50,] grant a lien on patents and patent applications to a Massachusetts attorney for patent prosecution work performed on behalf of a client? "2. If [G.L. c. 221, § 50,] does grant a lien and the issued patents or patent applications are sold, does the attorney's lien attach to the proceeds of the sale?" The court concluded:
By its substantial amendment of the lien statute in 1945, the Legislature significantly expanded an attorney's right to recover legal fees for services rendered to a client in a variety of proceedings. The language of G.L. c. 221, § 50, states that an attorney shall have a lien for reasonable fees and expenses not only from the "authorized commencement of an action, counterclaim or other proceeding in any court," but also from the "appearance in any proceeding before any state or federal department, board or commission." When an attorney files a patent application for a client with the USPTO, that action constitutes appearing in a proceeding before a Federal department. [FN6] See 35 U.S.C. § 1 (2006) (USPTO was established as agency of United States, within Department of Commerce); 37 C.F.R. § 10.1 (2008) ("proceeding" before USPTO includes application for patent). Moreover, the broadening of the statute suggests a recognition by the Legislature that attorneys are entitled to be compensated for the work they perform that falls outside the purview of traditional litigation "in any court."In assessing the scope of an attorney's lien for reasonable fees and expenses, the language of G.L. c. 221, § 50, provides that the attorney shall have a lien "upon his client's cause of action, counterclaim or claim, upon the judgment, decree or other order in his client's favor entered or made in such proceeding, and upon the proceeds derived therefrom." In the context of patent prosecution work, the patent application is the client's "claim." It is a request for recognition of a property right whereby an inventor can exclude all others from making, using, or selling a patented invention for a designated period of time. Therefore, in accordance with the first phrase of the "upon" clause, when rendering legal services to a client to secure a patent, an attorney can assert a lien on the patent application when it is filed with the USPTO, and the lien necessarily remains attached to the subsequently issued patent, protecting the attorney's right to compensation.Contrary to the argument of the liquidating supervisor, the language of G.L. c. 221, § 50, does not require a "judgment" in order for an attorney's lien to attach. The repetition of the word "upon" in the statute describes three separate and independent bases for the assertion of an attorney's lien, namely (1) "upon [the] client's cause of action, counterclaim or claim," (2) "upon the judgment, decree or other order in [the] client's favor entered or made in such proceeding," and (3) "upon the proceeds derived therefrom." Interpreting the statute as requiring a "judgment" before a lien can attach, would render superfluous the words in the first "upon" clause. As we have already stated, every word of a statute must be given effect. See Bankers Life & Cas. Co. v. Commissioner of Ins., supra. Had the Legislature intended to limit the parameters of the lien statute to only those instances when an attorney has obtained a judgment, then the Legislature simply would have said that the attorney shall have a lien for his reasonable fees and expenses "upon the judgment, decree or other order in his client's favor," and nothing more. The case is Ropes & Gray LLP v. Jalbert, decided July 28, 2009. (Mike Frisch)
July 28, 2009 in The Practice | Permalink
Third Party Liability
The Wisconsin Supreme Court has held that a lawyer who had drafted a series of wills for his client that contravened a judgment in a prior divorce case may be liable to third party beneficiaries who did not benefit from the will to the extent ordered in the divorce case. The court rejected claims asserted by the lawyer of good faith and qualified immunity. The court affirmed the dismissal of related claims that were predicated on a theory of negligence. The key facts:
Robert Tensfeldt and his first wife, Ruth, had three children——Christine, Robert William, and John. When Robert and Ruth divorced in 1974, they entered into an agreement stipulating to various terms of the divorce. The divorce court determined that the stipulation was "fair and reasonable" and incorporated the stipulation into the divorce judgment.
One of the terms of the stipulation provides that Robert would make and maintain a will leaving two-thirds of his net estate to the children:
Will in Favor of Children: Simultaneously with the execution of this Stipulation, [Robert] shall execute and shall hereafter keep in effect, a Will leaving not less than two-thirds (2/3) of his net estate outright to the three adult children of the parties, or to their heirs by right of representation. Except as herein provided, [Robert] shall have the right to make such disposition of his estate as he may desire, except as limited herein, and further, except as limited by the requirements set forth in [the provision dealing with unpaid alimony.] As used herein, the term "net estate" shall mean [Robert's] gross estate passing under his Will (or otherwise, upon the occasion of his death), less funeral and burial expenses, administration fees and expenses, debts and claims against the estate, and Federal and State taxes.
Robert married his second wife, Constance, in 1975. They remained married until Robert's death in 2000. Robert and Constance had no children together, although Constance had three children from a previous marriage. In 1978, Robert executed a will that was compliant with the stipulation and order——one-third of the net estate went to Constance, and two-thirds of the net estate went to his children or their issue. In 1980, Robert retained Attorney...to provide estate planning services. It is undisputed that Robert made [the attorney] aware of his obligation to his children from the outset. When Robert initially met with [him], he gave the attorney a copy of the divorce judgment and stipulation. [The attorney] told Robert that he had three choices: comply with the stipulation; negotiate with the children to alter his obligation; or ignore the stipulation, knowing that the children might contest Robert's will upon his death. Robert chose the third option, and in 1981, [the attorney] drafted an estate plan that did not leave two-thirds of the net estate outright to the Tensfeldt children.
After Robert executed the non-compliant estate plan, [the attorney] received a letter from Robert's divorce attorney, J.M. Slechta. Attorney Slechta wrote:
Since you have drafted a will for Mr. Robert Tensfeldt of Oconomowoc, I recalled that in his divorce in 1974 in which proceedings I represented him, it was agreed in the Stipulation made part of the judgment, some restrictions on the disposition of his estate . . . . Realizing this might have some effect upon the disposition which you have proposed I am enclosing a copy of such stipulation for your examination. There does not seem to be any sanction against disposition of assets during his lifetime. [The attorney] wrote back:
Your letter . . . asks whether Mr. Tensfeldt's most recent Will . . . violates his obligations under that decree . . . .
In my opinion, Mr. Tensfeldt's present Will needs some revision in light of the obligations under the divorce decree, of which I was unaware until receipt of your letter. On the other hand, the so-called "Economic Recovery Tax Act of 1981" does, as you know, offer significant new estate and gift tax advantages which may be available to Mr. Tensfeldt to some extent despite the decree.
Robert and [the attorney] never changed the estate plan to bring it into compliance with the divorce stipulation and judgment. Even though Robert and Constance moved to Florida in 1985, they continued to retain the attorneys at [the attorney's firm] the planning. Over the course of 12 years, [the attorney] drafted and executed a series of revisions to the plan for Robert, including 92 plan that was in effect when Robert died. None of the revised plans left at least two-thirds of his net estate outright to the three adult children of his first marriage.
A concurring/dissenting opinion would hold:
I write separately for three reasons: (1) I conclude that the plaintiffs' claim against [the attorney], based on aiding and abetting Robert in allegedly violating a provision of a 1974 divorce judgment that required him to will two-thirds of his net estate to his three adult children, fails to state a claim on which relief can be granted because the estate planning provision of the divorce judgment exceeded the circuit court's subject matter jurisdiction; (2) I conclude that [the attorney] was immune from liability in drafting Robert's 1992 will because [the attorney] proceeded in a good faith belief that the provision in the 1974 divorce judgment that required estate planning in favor of the adult children was void from its inception, as a judgment; and (3) I conclude that even if I were to assume, arguendo, that the directive to make a will in the 1974 divorce judgment were enforceable when made, Wis. Stat. § 893.40, a 20-year statute of repose, precluded actions on the divorce judgment after December 5, 1994. Therefore, the divorce judgment had no effect, as a judgment, in 1999 when Robert reaffirmed the will that he made in 1992, and it had no effect at his death in 2000. As a result, the aiding and abetting claim against [the attorney] must be dismissed. Because the majority opinion concludes otherwise, I respectfully dissent from that portion of the majority opinion that addresses the aiding and abetting claim.
Law School 4.0: Are Law Schools Relevant to the Future of Law?
[posted by Bill Henderson, crossposted to ELS Blog] Paul Lippe, a well-known Silicon Valley GC and founder of Legal OnRamp (LOR), recently posted an essay on the Am Law Daily
that essentially argues that law schools, at least in their present
form, are not relevant to the future of law. [Lipshaw recently opined on Lippe as well.] Here is Paul's opening
graph:If I need some insight into the future of
medicine, I might head over to Stanford Medical School. If I
wanted to learn about likely directions in finance and hedge funds, I
might visit Penn's Wharton. If I were looking to make investments in
computing, I might arrange a tour of a lab at MIT. If I decided to
learn something about where legal practice, law firms, and legal
departments will be in 2014, where would I go? Not to law school.According
to Paul, it is not that we are working on irrelevant stuff. It is
worse than that: we are enjoying a comfortable living while loading
our students up with debt and having a low opinion of practicing
lawyers and the clients they service. Paul recounts a recent meeting
with law
school deans in which he "asked the question, 'If you decided the
purpose of law
school was to maximize the comfort and income of the faculty, what
would you do differently?' The answer: 'Nothing.'" Some people might be tempted to lump Lippe together with Judge Harry T. Edwards, who wrote several withering critiques of legal education during the early and mid-1990s. See, e.g., Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich L. Rev. 34 (1992); Harry T. Edwards, A Postscript, 91 Mich. L. Rev. 2191
(1993). Such lumping together is a mistake. Edwards' criticisms were
largely centered on the present--that professors where disengaging with
doctrine and increasingly irrelevant to judges and practicing lawyers. In contrast, the gravamen of Lippe's remarks are about thought
leadership and the ability to identify future solutions to macro-level
problems. Consider the following trend-lines, which are
representative of the types of issues that Lippe often discusses in his
LOR and Am Law Daily columns:
Nature and Cost of Civil litigation. With the proliferation
of electronic documents, civil litigation is becoming more
time-consuming and expensive. Thus, disposition of cases is
increasingly influenced by the financial wherewithal to wage prolonged
campaigns in court rather than the merits of underlying disputes. A
thought leader would be proposing (a) how to re-engineer the civil
justice in a way that reduces costs and improves access, or (b) how to
anticipate and avoid legal disputes through systems that keep clients
out of a broken civil justice system. Mediation and
arbitration are just the beginning, not the end. For example, the
credit card industry has eliminated virtually lawyers from
consumer-vendor disputes. See Morriss & Korosec, Private Dispute Resolution in the Card Context
(working paper, June 2005). Some would argue that this is a good thing
for business and consumers. Further, the lawyers who innovate through
designing such a system will always get a prime seat at the table. In
contrast, lawyers wedded to established ways may find fewer buyers of
their services.
Shifting Nature of Clients. Because of the shifting economics of the profession, an ever
large proportion of law graduates earn their living as "thing" lawyers
rather than "people" lawyer. Believe it or not, in the 1930s, the
dean of Yale Law School was preoccupied with the oversupply of lawyers.
Why? Because the majority of Yale grads became general
practitioners--i.e., people lawyers--within the local New England
economy. See Charles E. Clark & Emma Corstvet, The Lawyer and the Public: An AALS Survey, 47 Yale L. J. 1272 (1938). That world no longer exists. The overwhelming majority of law school graduates will
serve as "thing" lawyers, either for government, private industry, or a
public interest cause. Yet, hearkening back to the time of Dean Clark,
our entire regulatory framework is premised on the idea of a client who
is a single, natural person. We lawyers claim to be responsive to economic and social forces and readily profess our commitment to the public interest. See Preamble, MPRC para. 6 ("As
a public citizen, a lawyer should seek improvement of the law, access
to the legal system, the administration of justice and the quality of
service rendered by the legal profession. ... A lawyer should aid the
legal profession in pursuing these objectives and should help the bar
regulate itself in the public interest."). Yet, for nearly a century,
the pace of regulatory reform for lawyers has been either glacial or
non-existent. And all-too-often, the changes that have occurred are
driven by "parochial or self-interested" motives. Id at para. 12. Under Lippe's
thought-leader ideal, members of the legal academy would be
re-conceptualizing the assumptions underneath lawyer regulation and
proposing an institutionally coherent strategy for altering the
regulatory landscape in a way that simultaneously helps ordinary
citizens,
business, and the democratic process. In theory, we've got the time,
resources, and brain power. Where is the leadership?
Cost and Quality of Legal Education. Over the last 30 years, the cost of a legal education has increased
approximately three times faster than the average household incomes. Yet, it is difficult to identify a corresponding innovation within
legal education that justifies the higher cost. A thought leader
conceives of ways to reduce the cost of legal education or equip
graduates with a larger skill set that is likely to provide a
substantial return on investment. Here, I am not talking MacCrate-type
skills, as important as they might be. Rather, I am thinking
legal-process engineering and the ability to standardize and
commoditize legal products in a way that increases predictability and
drives down cost. See, e.g., Richard Susskind's collected works. If
lawyers solve problems, perhaps traditional legal disputes and
transactions are a mere subset of the services we might provide. What skills are especially relevant to the 21st century global
economy? Once again, because of our time, resources, and brain power,
Lippe is surprised we are not leading the conversation. Maybe he has a
More after the jump ... Continue reading July 2, 2009 in The Practice | Permalink
A Comment on Law School 4.0
Posted by Jeff LipshawAn op-ed by Paul Lippe (no relation) at the Am Law Daily on what law schools ought to do to cure THE PROBLEM has gotten a fair amount of buzz in the blogosphere, including from our own Bill Henderson. Here's my quick reaction:1. The descriptions of Phases I to III (reading law; Langellian case method; "law and ...") seem accurate to me.2. This statement strikes me as a relatively fair generalization:Even in 1981, when I went to law school, the faculty generally held law firms in low regard, and clients were presumed unethical without the constant guidance of lawyers (when I spoke to a law school dean the other day, she immediately equated client with "Enron"). It's nuts for law school to be primarily about understanding appellate decision making and not at all about understanding clients.This is particularly the case when discussing the politically-infused area of corporate governance. I still marvel at individuals in various institutions (academia, Congress, state governors, corporations) who have no compunction about calling the motives of other individuals in other institutions into question (i.e. conflicted, greedy, short-sighted, etc.) without stepping back and looking at their own. For example, I'm still not convinced that faculty governance has any moral superiority over corporate governance, and clearly Governor Sanford's recent escapade tarnishes the purity of the bully political pulpit. I'm willing to accept a middle ground, which is that none of us embodies an Archimedean moral fulcrum. Or to quote Robert Burns: "O wad som' pow'r the giftie gie us, to see oursels as ithers see us."3. Mr. Lippe says:-A much more empirical approach to practice, forcing much deeper inquiry, rather than just trotting out hypotheticals and issue-spotting--e.g., if choosing AAA arbitration is the right dispute resolution clause, do we know that a higher percentage of deals with no arbitration clause ended in a contentious dispute?This statement strikes me as not fully thought out, but certainly an
area in which inquiring minds ought to be engaged (I try to be, as
evidenced in this recent piece about legal "cures" to social problems). First, I'm not sure we've fully probed the empirical foundations of statements of this sort enough to use them as the basis for advice. You have a rare form of cancer. Overall, the cure rate with the best treatment is 20%. We can at least make some fairly reliable predictions as a result of natural science, to get at real cause-and-effect. As a general matter, that's far more challenging when we draw social science conclusions. Second, the analogy to medicine highlights the issue. Is the information a helpful piece of data in deciding whether to take the treatment? My son, Matthew, starts med school in six weeks, with a beginning unit that touches on evidence-based medicine. My guess is that data is helpful, but not ultimately dispositive, in making forward-looking judgments about care.
June 29, 2009 in Law Firms, Teaching & Curriculum, The Practice | Permalink
Lawyer and Financial Crisis Lessons from the Sieur de Champlain
Posted by Jeff LipshawMy life partner now of thirty years, Alene, knows me too well. She just finished David Hackett Fischer's (left) massive biography, Champlain's Dream, and walked into the office to show me Fischer's last couple of pages, and in particular this:Champlain argued that a leader must be prévoyant, a word that has no exact equivalent in modern English. His idea of prévoyance was different from foresight in its common meaning. It is not a power to foresee the future. To the contrary, prevoyance was the ability to prepare for the unexpected in a world of danger and uncertainty. It was about learning to make sound judgments on the basis of imperfect knowledge. Mainly it is about taking a broad view in projects of large purpose, and about thinking for the long run.What is really cool about this, for one thing, is the accessibility of the source materials. I was curious about what Champlain actually said on the subject, and Fischer's annotations take you back to the online resources of the Champlain Society in Toronto, where in a couple clicks, you arrive at the very page where Champlain used the word preuoyant in the original French.There's more than a micro and a macro nugget of wisdom for lawyers and regulators here. The micro has to do with a theme we talked about last week at the AALS Mid-Year Conference on the basic business associations course, and on which I previously blogged:As to the conception of business law and lawyering, I noted that the data of the world doesn't just organize itself; there is a relationship between the observer and the observed in which the observer brings something to the party. The predominant approach within the academy is to be, as Ronald Gilson observed, entomologists studying the beetles, and Usha had it right: entomologists telling the beetles how to BE beetles. It means academic conceptions of the law and its role are retrospective, objective, litigious, and analytical, while the practice conceptions of transactional law are forward-looking, subjective, transactional, and strategic/tactical. Moreover, what academic business law usually leaves out is the integration of doctrine, and the law itself, into the business (or Flog) game, which means dealing with (a) the exercise of good judgment, and (b) the limits of the law as means to the ends of the game.Champlain seems to have had the same thing in mind for mariners: you have to be a master of the detail (pricking the charts, knowing longitude and latitude, selecting food, understanding the construction of the ship, etc., etc., etc.,) but "[b]esides what is said above, a good sea-captain ought not to forget anything necessary [to be done] in a sea-fight, in which he may often find himself engaged. He should be brave, foreseeing [preuoyant], prudent, governed by good sound judgment, taking every advantage he can think of, whether for attack or defence, and if possible keep windward of his enemy." That exercise of judgment is a subtle trick, because Champlain makes it clear that the "wise and cautious mariner ought not to trust too fully to his own judgment" on important decisions, but to "take counsel with those whom he recognizes as the most sagacious, and particularly with old navigators . . . for it is not often that one head holds everything, and, as the saying goes, experience is better than knowledge." At the same time, there is a place for individual mettle, for when there is real danger "you must display manly courage," use a "steady voice," and "dispel fear from the most cowardly bosoms."The macro has to do with foresight or prévoyance itself, and how it applies to big crises like the present financial meltdown. Not to press the point too repeatedly (well, okay, if I must), but as I have just argued in a newly posted piece on the epistemology of the financial crisis, and on which topic David Zaring has some sage comments, politicians and regulators, like generals, are usually fighting the last war. Sarbanes-Oxley, as well as the "money-loosening" that followed the bursting of the Internet bubble are examples. Why it is so hard (despite the couple of lucky or prescient souls who saw it coming, but then again, I've hit long shots at the race track too) to regulate systemic risk looking forward rather than backward? The gist of the metaphor is that it's awfully hard to prescribe the medicine when you are still trying to figure out what the disease is!
June 20, 2009 in Current Affairs, Hot Topics, The Practice | Permalink
No Fees For Representing Yourself
An attorney who had sued for inspection of public records and prevailed is not entitled to attorney fees for representing himself, according to a decision of the Oregon Court of Appeals:
The ordinary meaning of "attorney fee," then, is the price demanded by an attorney for services rendered to a separate client entity. We find nothing in the text or context of ORS 192.490(3) to suggest a different meaning for that statute. The parties do not supply a legislative history of the statute indicating that an unordinary meaning was intended. Our understanding of the ordinary meaning of "attorney fees" is reinforced by decisions from other jurisdictions interpreting similarly worded attorney fee provisions in public records disclosure laws. For example, the District of Columbia's public records disclosure law provides that, "[i]f a person seeking the right to inspect or to receive a copy of a public record prevails in whole or in part in such suit, he or she may be awarded reasonable attorney fees and other costs of litigation." DC Code § 1-1527(c) (1992 Repl). In McReady v. Dept. of Consumer & Regulatory Affairs, 618 A2d 609, 612 (DC 1992), the court interpreted that statute and followed the federal rule that no fees could be awarded to a pro se litigant, citing the United States Supreme Court's holding in Kay v. Ehrler, 499 US 432, 111 S Ct 1435, 113 L Ed 2d 486 (1991) (precluding awards of fees in section 1983 cases to persons who appear pro se, whether or not they are attorneys). (Mike Frisch)
June 19, 2009 in The Practice | Permalink
Certifications Expanded In Florida
The Florida Supreme Court has adopted amendments to the rules governing the Bar that permit certification of specialty in the areas of education law and adoption law. The amended rule, which takes effect immediately, is attached to the court's order. (Mike Frisch)
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217 F. 2d 783 - Caprito v. United States HomeFederal Reporter, Second Series 217 F.2d.
217 F2d 783 Caprito v. United States 217 F.2d 783
S. CAPRITO
United States Court of Appeals, Fifth Circuit.
Rehearing Denied Feb. 2, 1955.
L. D. Hawkins, Breckenridge, Tex., T. H. Neel, Monahans, Tex., Hawkins & Dean, Breckenridge, Tex., for appellant, S. Caprito.
Edmund B. Clark, Atty., Dept. of Justice, Washington, D.C., Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis, Attorney, Washington, D.C., Charles F. Herring. U.S. Atty., Austin, Tex., for appellee.
Before HOLMES and TUTTLE, Circuit Judges, and ALLRED, District Judge.
HOLMES, Circuit Judge.
This appeal is from a judgment holding that appellant's claims for damages were res judicata. In 1943, the United States brought two suits condemning for use as an airfield and gunnery range a leasehold interest in 4,160 acres of land in Ward County, Texas, owned by the appellant. The estate sought to be condemned was a leasehold interest extending to June 30, 1944, together with the right to extend the lease for yearly periods during the existence of the national emergency. Thereafter the United States filed declarations of taking and deposited $1,737.76 as the estimated just compensation for the period ending June 30, 1945.
On January 24, 1945, the appellant entered into a stipulation with the appellee whereby he agreed to receive $2,000 in full and complete satisfaction of the lease rental and as just compensation for the taking of said leasehold interest, for the original and extended terms ending June 30, 1945. The stipulation further provided that, if there were further extensions, the compensation for such additional periods should be $945 per annum. Thereafter the term was extended to June 30, 1946. On May 8, 1946, the district court entered judgments in accordance with the stipulations. The judgments provided that they should constitute a full and complete satisfaction of any and all claims of the defendant S. Caprito for the term ending June 30, 1945, and that he should be paid the sum of $945 per annum for any extensions of the term taken. Appellant has received the stipulated sums for the period up to June 30, 1946. The term was not extended beyond that date, but the United States apparently remained in possession for six months afterwards.
Commencing in October, 1947, the appellant filed a series of petitions in the condemnation proceedings, claiming that waste was committed by the appellee, and seeking damages therefor. In addition, in said proceedings, similar damages were claimed for certain land not included in the condemnation proceedings. As these petitions were finally amended, appellant sought $54,430 as rent and damages for the waste allegedly committed. The appellee moved to dismiss appellant's pleadings on the ground that he was precluded by the stipulations and that the judgments of May 8, 1946, were res judicata. The court overruled the motions and consolidated the cases for trial. Pursuant to Rule 71A(h) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the court appointed three commissioners to make awards in the consolidated cases. At the hearing, the commissioners would not permit the appellant to introduce evidence of damage occurring prior to May 8, 1946, the date of the judgments. The commissioners also refused to hear evidence of damage to lands not included in the condemnation proceedings. They awarded appellant $945, one year's rent for the six-months hold-over period. They held that all claims of the appellant were barred by the said judgments. On December 30, 1953, the court below sustained the appellee's pleas of res judicata, confirmed the commissioners' award, and entered judgment accordingly. This is the judgment from which the appeal was taken.
The question presented is whether the judgments were res judicata as to all of appellant's claims. We think that they were as to any claims for damages to the land within the scope of the condemnation proceedings, but that the appellant may be entitled to recover damages for waste to his land in a new and independent suit, which question we do not decide in this consolidated condemnation proceeding. The stipulation expressly stated that the money received was to be in full and complete satisfaction and as just compensation for the taking of the leasehold estate. The language, used in the stipulation and the judgments, embraced all claims to compensation because of prior legal and proper use of the lands by the United States. Appellant does not suggest that there was any fraud or mistake such as would justify a vacation of the judgments and a rewriting of the stipulations so as to embrace less than full and complete satisfaction for the contemplated use of the land. We think that the district court correctly held that appellant's claims for damages arising out of such use prior to the entry of the judgments of May 8, 1946, were precluded by the same; but we agree with the appellant that the judgments of May 8, 1946, do not bar recovery for damages to land not included in the condemnation proceedings. The appellant is not foreclosed by res judicata from asserting his claims for waste by an appropriate action in a proper forum.
The judgments of May, 8, 1946, and the stipulations filed on that date, had relation only to the nature of the estate taken, the duration of the tenancy and the amount of rental to be paid by the United States. They are not res judicata of the claims of appellant for damages for waste which was not contemplated by the pleadings or judgments in the consolidated condemnation proceedings.
Waste is a destruction or material deterioration of the freehold, or of the improvements thereon, by any person rightfully in possession of property but who has not the fee simple title thereto. When committed by a tenant, such destruction or deterioration, unless authorized by the lease, gives rise to a cause of action by the landlord. Womack v. Tripp, Tex.Civ.App., 137 S.W.2d 180; 51 C.J.S., Landlord and Tenant, § 261, pp. 902-903. We find no such authorization in the stipulation or judgments in this case, and a judgment must be interpreted in the light of the pleadings; but these claims of appellant were filed in a consolidated condemnation case after the entry of the judgments therein. The matter was treated by the court as a part of the condemnation proceeding; commissioners were appointed; and additional rental was awarded appellant for the term ending June 30, 1946. We do not deem it proper for us to disturb the judgments appealed from with respect to such allowances for rental, but in so far as said judgments or the report of the commissioners denied appellant any recovery for waste during the term of the lease, and for claims arising after May 8, 1946, the same are reversed, set aside, and held for naught. In all other respects the judgments appealed from are affirmed without prejudice to the right of appellant to bring an independent action for damages for waste committed upon the demised premises or for injury to other land owned by him. The judgments appealed from are modified accordingly and, as modified, are affirmed.
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Learn More About Toxic Tort Law in Laton, California Hometoxic tort lawcalifornialaton
Laton is a census-designated place (CDP) in Fresno County, California, United States. The population was 1,236 at the 2000 census. Laton is located 23 miles (37 km) south-southeast of Fresno, at an elevation of 259 feet (79 m). Toxic Tort Law Lawyers In Laton California
What is toxic tort law?
Toxic Tort cases involve people who have been injured through exposure to dangerous pharmaceuticals or chemical substances in the environment, on the job, or in consumer products -- including carcinogenic agents, lead, benzene, silica, harmful solvents, hazardous waste, and pesticides to name a few. Most toxic tort cases have arisen either from exposure to pharmaceutical drugs or occupational exposures. Most pharmaceutical toxic injury cases are mass tort cases, because drugs are consumed by thousands of people, many of whom become ill from a toxic drug. There have also been many occupational toxic tort cases, because industrial and other workers are often chronically exposed to toxic chemicals - more so than consumers and residents. Most of the law in this area arises from asbestos exposure, but thousands of toxic chemicals are used in industry and workers in these areas can experience a variety of toxic injuries. Unlike the general population, which is exposed to trace amounts of thousands of different chemicals in the environment, industrial workers are regularly exposed to much higher levels of chemicals and therefore have a greater risk of developing disease from particular chemical exposures than the general population. The home has recently become the subject of toxic tort litigation, mostly due to mold contamination, but also due to construction materials such as formaldehyde-treated wood and carpet. Toxic tort cases also arise when people are exposed to consumer products such as pesticides and suffer injury. Lastly, people can also be injured from environmental toxins in the air or in drinking water.
Answers to toxic tort law issues in California
What are a landlord's legal responsibilities regarding lead in rental property?
Because of the health problems caused by lead poisoning, the federal Residential Lead-Based Paint Hazard Reduction...
Federal court opinions concerning toxic tort law in California
448 US 607 Industrial Union Department v. American Petroleum Institute Marshall
521 US 591 Amchem Products Inc v. Windsor
295 F2d 292 Pritchard v. Liggett & Myers Tobacco Company
317 F2d 19 Lartigue v. R J Reynolds Tobacco Company
328 F2d 3 Ross v. Philip Morris & Company
439 F2d 584 Environmental Defense Fund Incorporated v. D Ruckelshaus
499 F2d 467 Industrial Union Department v. D Hodgson
510 F2d 1292 Environmental Defense Fund Inc v. Environmental Protection Agency
Hometoxic tort lawcalifornialaton
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Judge Finds Court Is Fit To Handle Suit on Election
By ELI SANDERS
In a defeat for Democrats as they defend Gov. Christine O. Gregoire from a Republican suit that challenges her election, a judge said on Friday that his courtroom, not the Democratic-controlled Legislature, was the proper forum to investigate the contest. The ruling thrilled Republicans who have been pushing to remove Ms. Gregoire since December, when she was declared the winner by 129 votes out of nearly 3 million cast. The race, unusual in its tiny margin of victory and the bitterness it has prompted, featured three official counts, only the last of which went in Ms. Gregoire's favor. Persistent Republican accusations of serious flaws in the ballot counting and re-counting led to the suit. The suit, seeking a revote, has been under way in Chelan County, east of Seattle, since Jan. 7. ''We are very pleased with this ruling,'' said Mary Lane, a spokeswoman for the Republican candidate, Dino Rossi, who has become something of a governor in exile among his supporters. ''This election contest can move forward, which is very good news.'' At the packed hearing before Judge John E. Bridges of Chelan County Superior Court, whom a Democratic governor appointed in 1988, a cryptic sentence from the State Constitution kept being repeated, first by Democratic lawyers who argued that it meant that the Legislature should decide the case, and then by Republican lawyers, who argued that it meant that the courts should decide, and finally the judge as he ruled. The sentence, which is 116 years old, says contested races for governor ''shall be decided by the Legislature in such a manner as shall be determined by law.'' Until Friday, its meaning had never been parsed by a state court, Judge Bridges said. Surrounded by the thick white binders filled with briefing materials from the two parties and complaining wryly of a lack of sleep from so much reading, Judge Bridges ruled that the Legislature had, through the longstanding state law, already delegated the authority to hear election contests to the state's courts. Thus, ''by law,'' he ruled, the Legislature had given him the authority to hear the case. Republicans had originally named more than 80 defendants, including officials in all 39 counties in the state. Later in the day, Judge Bridges ruled in favor of the Democrats and several of the counties on motions to dismiss all county officials from the suit, saying the number of defendants was unwieldy and unnecessary. That reduced the defendants to three, chief among them Secretary of State Sam Reed, a Republican. Democrats said they were not surprised and were happy that the Republicans would be required to prove their case within the confines of the election law, a process that could take some time and be much like putting the election on trial. ''This is going about the way we expected,'' a lawyer for the Democrats, David McDonald, said. ''If you've got to decide this case under the election contest statute, these guys are in trouble.'' Inside NYTimes.com Health » Too Hot to Handle
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NY Region
Skakel's Attorney Likes Long Shots
Hubert Santos Has a Long Record of Success in Connecticut's Courtrooms
Joseph De Avila
Nov. 17, 2013 10:16 p.m. ET
Defense attorney Hubert Santos has an easygoing manner in the Connecticut courtrooms where he has plied his trade for four decades. He once sang a bit of Gilbert and Sullivan to make a point to a jury. He is 69 years old, bald and, to some, has an air of Columbo about him, a reference to the 1970s television detective who was underestimated by criminal suspects. "He could tailor the facts and marshal the facts in manner that from a prosecutor's point of view you would wonder, 'Is he talking about the same case?'"...
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Broad Provision in Immigration Law Results in Refugees, Asylum Seekers Being Labeled Terrorists
Wednesday, 02 December 2009 12:50 By William Fisher, t r u t h o u t | Report | name.
(Photo: reway2007 / Flickr; Edited: Lance Page / t r u t h o u t)Thousands of legitimate refugees and asylum seekers — who pose no danger to the United States and who have committed no acts of wrongdoing — are being labeled "terrorists" and their applications for protection are being denied or delayed because of overly broad "terrorism" provisions in the Immigration and Nationality Act (INA).
These are the conclusions of a report by Human Rights First (HRF), a legal advocacy organization. They come as Homeland Security Secretary Janet Napolitano, the White House point person on immigration, is calling on Congress to provide temporary worker programs and a path to citizenship for 12 million unauthorized workers when it takes up a reform bill next year.
Napolitano is optimistic that immigration reform could pass in an election year, because she says border security goals have been met and the economic downturn has decreased unauthorized immigration significantly since a bipartisan bill died in the Senate two years ago.
But Congressional Republicans dispute the administration's claims that the border has been secured, and have repeated their opposition to citizenship for unauthorized immigrants.
Earlier, Napolitano outlined the efforts her department plans to make to improve and reform conditions for thousands of refugees currently being held in detention centers, county jails, and privately run prisons, most of them awaiting decisions on their applications for asylum in the US. Many of these centers, which are run by DHS's Immigration and Customs Enforcement agency (ICE), have been severely criticized for denying detainees legal due process and basic medical care.
The HRF report - "Denial and Delay: The Impact of the Immigration Law's 'Terrorism Bars' on Asylum-Seekers and Refugees in the United States" - describes the adverse and unintended consequences the overly broad "terrorism" provisions in the Immigration and Nationality Act are producing for asylum-seekers and refugees.
The report says that more than 18,000 refugees and asylum seekers have been directly affected by these provisions to date.
Anwen Hughes, senior counsel in HRF’s Refugee Protection Program, told Truthout that there are currently more than 7,500 cases pending before the Department of Homeland Security. She said these cases are "on indefinite hold based on some actual or perceived issue relating to the immigration law's 'terrorism'-related provisions." The overwhelming majority of the cases are applications for permanent residence or family reunification filed by people who were granted asylum or refugee status several years ago and have been living and working in the United States since then," she said.
She added that there is a need for a comprehensive review of the program.
HRF’s report cites a number of examples of refugees who have been characterized as "terrorists" under the legal definitions currently in use:
* A refugee from Burundi, who was detained for 20 months in a succession of county jails because the US Department of Homeland Security, and the immigration judge who would otherwise have granted him asylum, took the position that he had provided "material support" to a rebel group because armed rebels robbed him of $4 and his lunch.
* A young girl kidnapped at age 12 by a rebel group in the Democratic Republic of Congo, used as a child soldier and later threatened for advocating against the use of children in armed conflict, who has been unable to receive a grant of asylum, as her application has been on hold for more than a year because she was forced to take part in armed conflict as a child.
* A man who fled political and religious persecution in Bangladesh, who has had his application for permanent residence placed on indefinite hold because he took part in his country’s successful struggle for independence - in 1971.
* The minor children of members of the democratic opposition from Sudan who were granted asylum in the United States years ago, who have been prevented from becoming permanent residents because the peaceful political activities of their parents have been deemed to constitute "material support to a terrorist organization."
HRF says the provisions of the INA "are being applied to refugees who were associated with groups that the US government does not consider to be 'terrorist organizations' in any other context. The INA's sloppy definition of a 'Tier III terrorist organization' is causing groups that the United States does not treat as 'terrorist' in any other context to be defined in this way."
The INA defines "terrorist activity" as any unlawful use of a weapon for any purpose other than personal enrichment and a "Tier III terrorist organization" as any group of two or more people who engage in - or has a subgroup that engages in - "terrorist activity." These laws are overly broad, and for the past several years the immigration agencies have been interpreting them in an increasingly expansive way.
As a result, the report asserts, thousands of legitimate refugees and asylum seekers — who pose no danger to the United States and who have committed no acts of wrongdoing — have been labeled "terrorists" and had their applications for protection denied or delayed.
While the INA also provides broad authority to the secretary of Homeland Security and the secretary of state, in consultation with the attorney general, to grant "waivers" of most of the terrorism-related inadmissibility grounds, HRF says "the federal agencies involved have implemented this authority in a piecemeal and centralized fashion that has proved to be unworkable as a long-term, meaningful solution."
Examples of groups labeled "Tier III terrorist organizations" include:
* Iraqi groups who rose up against Saddam Hussein in the 1990s, including those who took part in the failed uprising at the end of the Gulf War of 1991 that was encouraged by the first President Bush;
* Iraqi groups that later fought against Saddam Hussein's government at any other time, including in conjunction with the coalition forces that ultimately overthrew his regime in 2003;
* Afghan mujahideen groups that fought the Soviet invasion in the 1980s, with US support;
* The Democratic Unionist Party and the Ummah Party, two of the largest democratic opposition parties in Sudan, many of whose members were forced to flee the country in the years after the 1989 military coup that brought current President Omar Al-Bashir to power;
* Groups that fought the ruling military junta in Burma and were not included in the 2007 legislation that removed the Chin National Front and other Burmese insurgent groups from the scope of the Tier III definition;
Many of the refugees affected by the "Tier III" definition's overbreadth were involved only in peaceful political activity in connection with groups that are now deemed to be "terrorist organizations" for immigration law purposes, the report says.
It adds, "The federal immigration agencies charged with applying these laws — the Department of Homeland Security, the Department of Justice, and the Department of State - have also been interpreting all these provisions in a very expansive way. The immigration law's 'material support' bar, for example, is being applied to minimal contributions, to people who were forced to pay ransom to armed groups, to doctors who provided medical care to the wounded in accordance with their medical obligations, and to persons who engaged in other forms of lawful activity. These interpretations have exacerbated the impact of the law's overbroad definitions."
The report's policy recommendations focus on the scope and application of the INA's "terrorism"-related provisions on those individuals whom Congress intended those provisions to target: people who threaten US national security and those who have engaged in or supported acts of violence that are inherently wrongful and condemned under US and international law. HRF is calling on Congress to:
* Eliminate the statutory definition of a "Tier III" terrorist organization, which has led to numerous unintended consequences but is not needed as an enforcement tool against its intended targets;
* Amend the immigration law's definition of "terrorist activity" so that it (a) targets only the use of violence for purposes of intimidation or coercion (of a civilian population or of a government or an international organization), and (b) no longer applies to uses of armed force that would not be unlawful under international humanitarian law;
* Amend the immigration law's definition of "material support" to make clear that it does not apply to acts done under coercion;
* Eliminate the provision that makes a person inadmissible simply for being the spouse or child of a person inadmissible under the immigration law's "terrorism"-related grounds;
* Give waiver authority to the attorney general for cases pending before the Department of Justice, with the provision that the attorney general delegate this authority to the immigration courts;
In addition, the report says, the Departments of Homeland Security, Justice and State should support its recommendations to Congress; interpret existing law consistently with its text and purpose, to target those who advance actual terrorist activity; and implement a more effective and fair approach to waivers.
Last modified on Wednesday, 02 December 2009 15:27 back to top Follow @truthout
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Ethics 20/20 Commission's last proposals…
Ethics 20/20 Commission's last proposals draw little dissent
Posted Apr 01, 2013 06:39 am CDT
By James Podgers and Debra Cassens Weiss
Photo of the 2013 House of Delegates meeting in Dallas courtesy of ABA Media Services.
Anyone looking for a verbal donnybrook in the House of Delegates during its one-day session at the 2013 ABA Midyear Meeting came away disappointed. While the agenda featured resolutions on a number of timely and important topics, the delegates worked through them with minimal debate and even less dissent.
Most notably, the House adopted four resolutions submitted by the Commission on Ethics 20/20 on voice votes that elicited no more opposition than murmurs of “nays.” Three of the commission’s resolutions propose changes in professional conduct rules to make it easier for foreign lawyers to obtain limited authority to practice in U.S. jurisdictions. The commission’s last resolution deals with how lawyers and clients decide which rules on conflict of interest should apply to matters involving multiple jurisdictions.
The Ethics 20/20 Commission has been working since 2009 to consider possible revisions to the ABA Model Rules of Professional Conduct and related ethics standards in response to the impact of globalization and technology on law practice in the United States. The Model Rules are the basis for ethics codes for lawyers in all the states except California.
The commission approached the midyear meeting in Dallas, which ended on Feb. 11, cautiously because there were potential pockets of resistance to its recommendations on foreign lawyers practicing in the United States. The proposals would limit the scope of that work, as well as require that practitioners from foreign jurisdictions provide assistance only to existing clients and work closely with U.S. practitioners, who would advise on U.S. law.
But some tweaking of the language in the commission’s recommendations in the final days, especially to affirm more clearly that only duly licensed and authorized U.S. lawyers may provide advice on U.S. law, helped offset concerns.
That flexibility reflected the approach the commission has taken from the beginning of its work, said co-chair Jamie S. Gorelick, a partner at Wilmer Cutler Pickering Hale and Dorr in Washington, D.C., during a post-mortem interview with the ABA Journal. “We engaged in abundant consultation,” she said. “There was a lot of input from individuals and other entities that we listened to and responded to.”
Michael Traynor, the commission’s other co-chair, credited the Standing Committee on Professional Discipline with suggesting some key late revisions to the recommendations. “We thought it was a good change, and we had no problem working them out with our co-sponsors,” said Traynor of Berkeley, Calif., a past president of the American Law Institute.
Resolution 107A expands the reach of Rule 5.5(d) of the ABA Model Rules of Professional Conduct to qualified foreign lawyers as well as lawyers from other U.S. jurisdictions. Under the amended rule, a foreign lawyer may provide legal services to an employer in the United States, but advice on U.S. law must come from a lawyer duly licensed and authorized to provide it in the jurisdiction where it is given.
Resolution 107B amends the ABA Model Rule for Registration of In-House Counsel to include foreign lawyers working in the United States, who would be subject to essentially the same restrictions on giving advice on U.S. law that are set forth in the amended Rule 5.5.
Resolution 107C amends the ABA Model Rule on Pro Hac Vice Admission to allow a court or agency in a state jurisdiction to admit, at its discretion, a foreign lawyer in a particular proceeding as long as the foreign lawyer is working with a lawyer from the jurisdiction who has primary responsibility for the case and for advising the client, particularly on the substantive and procedural law of that jurisdiction and other U.S. jurisdictions.
Resolution 107D adds language to the comment to Rule 8.5 of the Model Rules of Professional Conduct recognizing that clients and lawyers in a matter involving multiple jurisdictions should be able to specify the jurisdiction where the predominant effect of the lawyer’s conduct will occur for purposes of a choice of law analysis to determine which jurisdiction’s conflict of interest rules will apply. The amended comment also states that the decision on choice of law should be confirmed by a written agreement between the client and lawyer.
Shepherding the resolutions through the House was the Ethics 20/20 Commission’s final act. The House adopted a series of resolutions sponsored by the commission in August 2012. Now the Policy Implementation Committee of the Center for Professional Responsibility will begin talking to state jurisdictions about adopting the recommendations into their own ethics rules.
“We were asked to look at the impact on the legal profession of changes in globalization and technology,” said Gorelick, “and we did that. We made incremental but important changes in the rules” for still more changes that may be yet to come.
And how will the commission co-chairs reward themselves for their labors? “I’m going to Disney World,” said Gorelick with a chuckle.
In other action, the House:
• Passed two resolutions in support of public defenders who are dealing with excessive caseloads. Resolution 104A urges Congress to create and fund an independent, federally funded Center for Indigent Defense Services to help governments carry out their constitutional obligation to provide effective assistance to indigent defendants. A report accompanying the resolution says, “Today the failure of state and local governments to adequately fund indigent defense is a national scandal.” And Resolution 104C urges state lawmakers to prohibit firing a chief public defender or other indigent-services leader who limits acceptance of new clients in a good-faith effort to ensure competent representation.
• Called for disclosure of secret campaign contributions made through nonprofit groups donating money to super PACs. Resolution 110B urges Congress to require groups exempt from campaign disclosure requirements, as currently interpreted, to disclose the source of funds and the amounts spent. The disclosure should be subject to threshold limits, however, as needed to avoid infringing on the right of free association, the resolution says. Contributions and expenditures by 501(c)(4) nonprofits and 527 political organizations remain largely hidden. One 527 group, known as a super PAC, can accept unlimited amounts of contributions and spend unlimited amounts on behalf of or against candidates. People or corporations seeking to keep political contributions private donate money to 501(c)(4) nonprofits, which in turn donate to super PACs. In filings with the Federal Election Commission, the super PAC lists the nonprofit, “effectively masking the true source of the funds,” according to the report to the House.
• Encouraged lawyers, when appropriate, to consider providing unbundled legal services. A report supporting Resolution 108 says, “Lawyers who unbundle their services in the marketplace charge their full rate, expand their client base because the cost per case is more affordable, and effectively compete with document preparation services.” The resolution also encourages the judiciary, bar associations, court administrations and CLE providers to take measures to ensure that lawyers who provide unbundled services do so with a full understanding of their professional obligations.
• Responded to potential automatic budget cuts on the federal level. Resolution 10A urges federal lawmakers to ensure adequate funding for federal courts and the Legal Services Corp.
• Called for the wording in the Model Grand Jury Charge for federal courts to be changed to recognize the principle that a grand jury is not bound to indict in every case where a conviction can be obtained.
• Provided guidance for an ABA amicus brief in a Supreme Court case, Association of Molecular Pathology v. Myriad Genetics, on the patenting of isolated human genes associated with increased risk of breast and ovarian cancer. The U.S. Supreme Court is considering just one issue in the case: whether isolated genes are “human-made inventions” that can be patented or “products of nature” that may not be patented. The U.S. Court of Appeals for the Federal Circuit ruled on a separate issue that the Supreme Court opted not to consider—the patent eligibility of a Myriad method for screening compounds to determine their use for cancer treatment using an altered gene. The Federal Circuit found the process to be patent eligible because it involves the use of a cell transformed with an altered gene, and thus is not a prohibited law of nature, natural phenomena or abstract idea. Resolution 101A supports the Federal Circuit’s position. The resolution also takes the stance that questions regarding patent eligibility under Section 101 of the patent statute—a section that opens the door to the possibility of obtaining a patent—should be decided independently from other sections of the law that determine patentability based on obviousness, novelty and claim definiteness.
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Court: Hobby Lobby can challenge health care law
KRISTEN WYATT,Associated Press
DENVER (AP) — An appeals court said Thursday that Hobby Lobby and a sister company that sells Christian books and supplies can fight the nation's new health care law on religious grounds, ruling the portion of the law that requires them to offer certain kinds of birth control to their employees is particularly onerous, and suggesting the companies shouldn't have to pay millions of dollars in fines while their claims are considered.The 10th Circuit Court of Appeals in Denver said the Oklahoma City-based arts and crafts chain, along with Mardel bookstores, not only can proceed with their lawsuit seeking to overturn a portion of the Affordable Care Act, but can probably win.The judges unanimously sent the case back to a lower court in Oklahoma, which had rejected the companies' request for an injunction to prevent full enforcement of the new law."Hobby Lobby and Mardel have drawn a line at providing coverage for drugs or devices they consider to induce abortions, and it is not for us to question whether the line is reasonable," the judges wrote. "The question here is not whether the reasonable observer would consider the plaintiffs complicit in an immoral act, but rather how the plaintiffs themselves measure their degree of complicity."Hobby Lobby Stores Inc., Mardel Inc. and their owners, the Green family, argue for-profit businesses — not just religious groups — should be allowed to seek an exception if the law violates their religious beliefs. The owners approve of most forms of artificial birth control, but not those that prevent implantation of a fertilized egg — such as an IUD or the morning-after pill.Hobby Lobby is the largest and best-known of more than 30 businesses in several states that have challenged the contraception mandate. A number of Catholic-affiliated institutions have filed separate lawsuits, and the court suggested faith-based organizations can follow for-profit objectives in the secular world."A religious individual may enter the for-profit realm intending to demonstrate to the marketplace that a corporation can succeed financially while adhering to religious values. As a court, we do not see how we can distinguish this form of evangelism from any other," they wrote.A majority of judges couldn't decide whether the Oklahoma court had sufficiently addressed two parts of Hobby Lobby's initial complaint and sent them back for further review at the local level.Throughout a ruling that covered more than 160 pages, the judges noted Hobby Lobby faced a difficult choice — violate its religious beliefs, pay $475 million in fines for failing to comply with the law (a $100 fine per day for each of its 13,000 workers), or pay $26 million to the government if it dropped its health care plan altogether.Hobby Lobby and Mardel won expedited federal review because the stores would have faced fines starting Monday for not covering the required forms of contraception. The 10th Circuit judges said the Oklahoma court was wrong to not grant the companies an injunction in the face of serious financial penalties.Hobby Lobby and other companies challenging the contraception mandate say the morning-after pill is tantamount to abortion because it can prevent a fertilized egg from becoming implanted in a woman's womb. The 10th Circuit heard the case before eight active judges instead of the typical three-judge panel, indicating the case's importance.The U.S. Department of Justice argued that allowing for-profit corporations to exempt themselves from requirements that violate their religious beliefs would be in effect allowing the business to impose its religious beliefs on employees. In its ruling, the 10th Circuit cited a 2010 U.S. Supreme Court conclusion that for-profit corporations have rights to political expression."We see no reason the Supreme Court would recognize constitutional protection for a corporation's political expression but not its religious expression," the judges wrote.One judge went even further in a concurring opinion."No one suggests that organizations, in contrast to their members, have souls," Judge Harris Hartz wrote. "But it does not follow that people must sacrifice their souls to engage in group activities through an organization."Hobby Lobby calls itself a "biblically founded business" and is closed on Sundays. Founded in 1972, the company now operates more than 500 stores in 41 states and employs more than 13,000 full-time employees who are eligible for health insurance.Emily Hardman, spokeswoman for the Washington-based Becket Fund for Religious Liberty, which represents Hobby Lobby, called the ruling a "resounding victory for religious freedom."But Americans United for Separation of Church and State said the judges were wrong."This isn't religious freedom; it's the worst kind of religious oppression," executive director Barry Lynn said in a statement.___
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SJC decision could change state’s handling of juvenile offenders - The Boston Globe
SJC decision could change handling of juvenile offenders
By Milton J. Valencia and John R. Ellement
This week’s Supreme Judicial Court decision opening the door to parole for teenagers convicted of murder will force a major examination of the way the state tries, sentences, and attempts to rehabilitate them, according to legal analysts.In its Tuesday decision, Massachusetts’ highest court called on the state to quickly create a “new, constitutional sentencing scheme for juveniles convicted of homicide crimes.”
“We have to look at our system and figure out where we make it work in a way that has meaningful accountability, but looks at kids in a meaningful way, and addresses the fact that they are kids,” said Naoka Carey, executive director of Citizens for Juvenile Justice, a nonprofit research and advocacy group based in Massachusetts, in a phone interview Thursday.Possible changes could include steering young killers into prison educational and self-improvement programs so they can recognize the seriousness of their crimes and seek to rehabilitate themselves. The state parole board will also have to establish new ways to consider requests by prisoners who were convicted as juveniles but are living in an adult prison system.
The SJC decision struck down a law that allows juveniles to be sentenced to life in prison with no possibility of parole for crimes committed before they turned 18, finding it violated their rights against cruel and unusual punishment.
More than 60 cases could be immediately up for review, ranging from the 1975 conviction of Joseph Drayton, who was 17 when he killed a stranger during an armed robbery, to the 1997 prosecution of Edward S. O’Brien, who was 15 when he stabbed his neighbor in Somerville, the mother of his best friend, more than 90 times.The state Executive Office of Public Safety and Security said in a statement Thursday that, “The Parole Board takes its responsibility to implement this recent Supreme Judicial Court decision on juvenile sentencing seriously. The board is in the process of reviewing the decision and developing next steps to ensure it is fairly and swiftly implemented.”
Across the country, state courts and legislatures have been increasingly treating juvenile offenders differently than adults, even in cases of murder.Wyoming, for instance, passed a law earlier this year offering parole hearings to defendants who committed murder before they were 18. The defendants had not been able to be considered for parole before the law was passed, unless they received a governor’s commutation, which was rare.“They have to have a realistic shot at getting parole some day, and the way it was set up before, they didn’t really have it,” said Daniel Fetsco, deputy director of the Wyoming Board of Parole Office, in a phone interview Thursday.
In the mid-1990s, Massachusetts passed some of the nation’s most punitive laws for juvenile offenders convicted of murder, after a series of brutal homicide cases, including O’Brien’s. A 1996 law, for instance, allowed for defendants 14 and older to be tried for murder as adults, exposing them to the life sentences.But in its Tuesday decision, the SJC — supporting recent US Supreme Court rulings — found that it agreed with medical findings that the brain functions and thinking patterns of juveniles are less developed than adults’, and so treating them as adults and depriving them of the possibility of parole would violate their rights against cruel and unusual punishment.The court found that teenagers convicted of murder should have the right to be able to demonstrate whether they have recognized their wrongdoing and are eligible for parole beginning 15 years after their conviction, the same time frame in which an adult convicted of second-degree murder would be eligible for parole.Legal observers said the state parole board should prioritize hearings for convicted murderers who have already served more than 15 years in prison for crimes they committed as juveniles. Some have already served more than twice that.
They also said the parole board will have to revise its procedures for such prisoners. Typically, the board listens to testimony from convicted murderers and their supporters stating why they should be granted parole, and also arguments against granting it; but now the board will also have to consider the SJC’s findings that teenagers should be treated differently than adults.“More and more, the courts and the legislatures across the country are looking at this research and saying, ‘OK, in order to treat kids fairly, we have to treat them differently than we’re treating adults,’ ” said Joshua Dohan, director of the youth advocacy division for the state Committee for Public Counsel Services, Massachusetts’ public defender agency.The state’s highest court based its decision on that research on juveniles, and parole board members will have to factor that into their deliberations.“The court is demonstrating its trust that the members of the parole board will do their homework and study the criteria that they need to consider for juveniles and make sure to give them a fair, informed, and thorough hearing,” Dohan said.
Donna Sytek, chairwoman of the New Hampshire Adult Parole Board, which recently reviewed the case of a 31-year-old man convicted of a murder he committed at age 14, said she has learned to weigh the characteristics of a teenager versus an adult’s.Teenagers, for instance, might be more likely to have a record of fights in jail, because they might seek the protection of a gang, especially if they believed they would never be eligible for parole.However, she added, key questions remain: Will defendants be able to be reintroduced to society, and do they recognize the seriousness of their crimes?“We approach everything using guidelines, risk assessment scores, but we bring our own judgment to it,” she said.Rosemary Scapicchio, an attorney who represents several defendants who were convicted for crimes committed as juveniles, said the Department of Correction will have to better classify teenagers who were convicted as adults so they could work on improving themselves, and win the opportunity to prove they should be granted parole.“These kids can still have hope,” she said. “They shouldn’t have to suffer from these bad decisions for the rest of their lives, and that’s what was happening under the old system.”But Stephen Solimene, whose sister Janet Downing was killed by O’Brien, lashed out the court ruling. He said the ruling is at odds with the same court’s decision 16 years ago that O’Brien could be charged as an adult — one of the first in the state under the tougher enforcement against juveniles accused of murder.“They are the ones who created the law in the first place and to now reverse it is just totally insane,” he said. “The victims get revictimized all over again.”Solimene said he has already been contacted by prosecutors who told him that O’Brien, now 33 years old, could one day be called to a parole hearing. Reluctantly, he said, he will be there with his sister’s children.“I hate like hell to go over this whole thing all over again,” he said. “I thought everything was settled.”Lisa Tuite of the Globe staff contributed to this report. Milton J. Valencia can be reached at [email protected]. Follow him on Twitter @miltonvalencia.
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Court Orders DVD Chip Makers to License CSS Protection
The Motion Picture Association of America (MPAA) on Thusday
announced that its member companies have resolved a breach of contract lawsuit involving DVD chips that do not support the Content Scramble System (CSS).
This is the sixth such lawsuit that has concluded with a court-ordered injunction mandating a DVD chip manufacturer to adhere to the content security features of the CSS license. With the new injunction against Sunplus Technology Co., Inc., the world?s second largest DVD chip manufacturer, all of the major DVD chip manufacturers are now bound by court order to support the CSS license. The studios now plan to focus greater attention on other products, such as DVD players, that may also violate the license.
The Content Scramble System (CSS) is the protection system prevents movies from being illegally duplicated. CSS is a two-part system for which manufacturers of both the movie content (discs) and hardware or software (players) purchase licenses. The information on DVD discs is encrypted. The DVD players - either a computer drive or a home video player - have technology to 'decrypt' the information so it can be viewed. According to MPAA, violating the CSS licence exposes copyrighted material to piracy. The DVD Copy Control Association (DVD CCA) is a corporation with responsibility for licensing CSS to manufacturers of DVD hardware, discs and related products.
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http://www.mysanantonio.com/news/local_news/article/Violent-gang-war-nets-life-sentence-for-Gat-4119734.php
Violent gang war nets life sentence for 'Gat Daddy'
By Craig Kapitan
Still recovering from gunshot wounds incurred during a months-long gang war on the East Side, Charles Dwayne Williams had only been out of the hospital about two weeks in April 2011 when he returned to the streets to exact revenge, prosecutors said Friday as he was sentenced to life in prison. Williams, 43, who was known on the streets as “Gat Daddy,” was convicted by a jury last month of using an assault rifle to ambush Michael Whitley — described as a rival gang member — at a gas station. He opted to have state District Judge Maria Teresa Herr decide his sentence instead of jurors. Although investigators found about 30 bullet casings at the scene, Whitley survived the shooting and — in a move that attorneys acknowledged is very rare — agreed to testify against his gang rival during the aggravated assault with a deadly weapon trial. “There's a pattern of intimidation of witnesses, especially in that area where the shooting happened,” prosecutor Tanner Neidhardt said. “This case broke that pattern.”
He described the gas station shooting to the judge Friday as something that seemed more like a scene from the drug war in Mexico than a business just off of Interstate 10. Authorities believe there were at least six shootings between Williams' and Whitley's gangs from January 2011 until the day after Whitley, also known as “Gangster Mike,” was shot. The defendant blamed Whitley for a shooting a month earlier that resulted in his renal failure and permanent need for a colostomy bag and a cane, authorities said. Aggravated assault usually is a second-degree felony carrying a maximum punishment of 20 years in prison. The sentencing range was enhanced because of Williams' prior trips to prison, which included stints for two other non-fatal shootings in the 1990s. Defense attorneys Richard Langlois and William Brooks pointed to their client's poor health while asking for the minimum sentence, 25 years. Prosecutors Neidhardt and Chris Karl asked for life.
[email protected]: @HearsaySA
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Victims of terrorist attacks in Israel sue Facebook for $1 billion
The social media giant helps terrorists communicate and recruit, plaintiffs say
By Grant Gross
Senior Editor, IDG News Service |
Families of victims of five recent terrorist attacks in Israel are suing Facebook.
Grant Gross
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How to end online harassment
The families of victims of five recent attacks in Israel are suing Facebook for more than US$1 billion, saying the social media site helps terrorists plan their violence.
The lawsuit, filed in a New York court, accuses Facebook of helping Palestinian group Hamas recruit members, communicate, and plan attacks. The U.S. government designated Hamas a terrorist organization in 1995.
Plaintiffs in the lawsuit are family members of five terrorist attacks in Israel in the past two years, the most recent being a March 8 stabbing attack in Tel Aviv that killed 29-year-old U.S. citizen Taylor Force. Four of the people who died in the attacks were U.S. citizens, and another U.S. citizen was injured.
[ Download the State of the CIO 2016 report ]
The lawsuit, filed Monday, was brought under the Anti-Terrorism Act of 1992, which prohibits U.S. businesses from providing material support to designated terrorist groups.
"This lawsuit should be no surprise to Facebook, which has knowingly provided its social media platform and services to Hamas, its leaders, and affiliates for years, despite repeated complaints and warnings," Israeli lawyer Nitsana Darshan-Leitner, representing the plaintiffs, said by email.
Hamas' leader "would not be allowed to open a U.S. bank account, shop on Amazon or receive a U.S. cell phone," Darshan-Leitner added. "But somehow Facebook believes it can provide him and his terrorist associates with social media accounts."
Facebook didn't comment directly on the lawsuit but said it doesn't want violent messages on its website. "We want people to feel safe when using Facebook," the company said in a statement. "There is no place for content encouraging violence, direct threats, terrorism or hate speech on Facebook."
Facebook users who see violent messages should report it so the company can "investigate and take swift action," Facebook added.
Hamas didn't immediately respond to requests for comments on the lawsuit.
Social media has become "a necessary component" of international terrorism, said Darshan-Leitner, who has filed several lawsuits against companies accused of aiding terrorists.
Hamas has "recognized the tremendous utility and value of Facebook as a tool to facilitate this terrorist group's ability to communicate, recruit members, plan and carry out attacks, and strike fear in its enemies," the plaintiffs' lawyers wrote in their complaint. For years, Hamas has "openly maintained and used official Facebook accounts with little or no interference."
This story has been updated to add Facebook's comments in the seventh and eighth paragraphs; it also recasts the ninth paragraph.
Grant Gross edits and assigns stories and writes about technology and telecom policy in the U.S. government for the IDG News Service. He is based outside of Washington, D.C.
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February 15, 2007 Ex-cop indicted on manslaughter charges
Bob Ellis/staff photographer A TV camera focuses on former Cortland police officer Chip Stockton as he leaves County Court following his appearance this morning. Stockton pleaded not guilty to charges stemming from a Nov. 17 accident that injured two women, one of whom later died.
By ANTHONY SYLOR
[email protected]
CORTLAND — A former city police officer pleaded not guilty this morning to five criminal charges and one traffic violation in County Court, including driving while intoxicated and manslaughter.
With several of his family members and friends present, Jeffery “Chip” Stockton, 38, of 16 Frank St., Cortland, was arraigned on a sealed indictment in front of Judge Julie Campbell. He is accused of killing one woman and badly injuring another in a drunken driving accident in November.
Stockton is charged with second-degree manslaughter, second-degree vehicular manslaughter, second-degree vehicular assault, felonies; driving while intoxicated, DWI with a blood-alcohol content greater than 0.08 percent, misdemeanors; and failure to exercise due care, a violation.
If convicted on the manslaughter charges, he could be sentenced to as many as 15 years in prison.
“I’m not going to discuss the indictment that is going to be the subject of the pre-trial conference,” Stockton’s attorney, Mark Suben, said after the arraignment.
Stockton was arrested Nov. 17 after he struck two pedestrians — Melody Benn, 55, of 65 Central Ave., Apt. 11, and Lynn Briggs, 55, of 65 Central Ave., Apt. 10 — at the intersection of Central Avenue and Church Street.
Briggs died two weeks later from her injuries.
After the accident, Stockton was charged with assault, DWI and a traffic violation, of which he still is accused. He was not charged with manslaughter until this morning.
In addition to Stockton’s legal charges, Briggs’ daughter, Lisa Breed, filed a notice of claim against the city on Feb. 9 seeking unnamed monetary damages.
The claim states that Breed is seeking damages for mortal injuries, pain and suffering, medical care, lost income and funeral expenses for her mother.
The Breed family declined to comment on the lawsuit Wednesday.
According to court documents, Stockton told city police officers that he “had a few beers” before the accident and he was text messaging “a girl” at the time of the crash.
Police said Stockton failed three of four field sobriety tests, including saying the alphabet.
Police Chief James Nichols denied a Freedom of Information request seeking Stockton’s blood-alcohol content at the time of the accident in December, citing the department’s policy of not releasing a BAC while charges are pending in a case.
Stockton was employed at the Police Department for seven years. He resigned from the job on Dec. 6, four days after Briggs died.
After Stockton was arrested, he was released without bail. Campbell said this morning she would allow him to remain out of jail without bail, stating that he has made all his court appearance. He is scheduled to reappear March 16 in County Court.
Snow ends, but drifting a hazard
By EVAN GEIBEL
[email protected]
CORTLAND — The heavy snow finally tapered off Wednesday evening after a full day and night of accumulation, leaving between 15 and 18 inches of snow for residents and highway departments to deal with.
But the wind and cold isn’t going to let up anytime soon, said Bob Mundschenk, a Binghamton-based meteorologist for the National Weather Service.
“It’s going to be cold — temperatures today, you’ll be lucky if you hit 10 degrees (Fahrenheit),” Mundschenk said this morning.
It also will be “breezy,” Mundschenk said, with west winds blowing between 15 and 25 mph and wind chills between 5 degrees below zero and 15 degrees below.
The skies should be mostly cloudy, with only a 40 percent chance of snow showers into Friday.
The Cortland County Sheriff’s Department has lifted a ban on unnecessary travel, according to release issued this morning by Undersheriff Herb Barnhart, but drivers are urged to use caution. There is also the chance of drifting and whiteout conditions on secondary roads.
Now that the snow has let up, county Highway Department Superintendent Don Chambers said the road crews would be contending with the effects of the wind.
The roads are slippery but passable, Chambers said, and salt is not that effective because of the cold temperatures.
“We’ve been going around the clock, trying to keep things clean,” Chambers said this morning, “utilizing additional equipment to try to double up on the routes, to prevent drifting and push the banks back as far as we can. We have additional work force on, we’ve had to call guys in who are normally off at this point, and they are supplementing the crew that is on the current shift.”
The workers are “shelfing” the snow banks in an effort to reduce drift onto the roads; Chambers said this means the blades of the plows are being used to chop off the tops of the banks lining the roads.
“It sounds like the winds are going to continue, so until they subside and we feel we have everything under control, then we’ll go back to normal operations,” Chambers said, adding that the employees of the city, town, village, county and state highway departments have done a “fantastic job.”
Although not necessarily weather related, a malfunction at a National Grid substation left 360 customers without electricity for almost 10 hours Wednesday afternoon and evening, and shut down Greek Peak Ski Resort on a day with ideal conditions.
A fuse in a lightning arrestor — which protects the substation equipment from the effects of a lightning strike — failed at about 2:30 p.m. for an unknown reason, National Grid spokesman Alberto Bianchetti said. Power remained out until shortly after midnight.
Meanwhile, Virgil Town Supervisor Jim Murphy said the Virgil Volunteer Fire Department was on standby in case residents affected by the power failure needed assistance, as was the county Sheriff’s Department.
Al Kryger, president of Greek Peak, said this morning that four chairlifts were in use at the time, and all but one was evacuated with auxiliary power. However, one chair had to be evacuated with ropes after a malfunction during the installation of an auxiliary motor.
“It was devastating. We had half a parking lot full, it was a great day for temperatures, and the power goes off,” Kryger said. “Two years out of the last three we’ve had a full house and the power has gone out.”
Fed cuts would cost hospital $2.6 million
By COREY PRESTON
[email protected] Proposed Medicare and Medicaid cuts in the federal budget could cost Cortland Regional Medical Center approximately $2.6 million over the next five years, according to a report released Monday by a leading health care advocate.
Proposed cuts in both President Bush’s 2008 federal budget and Gov. Eliot Spitzer’s 2007-08 Executive Budget could account for a loss of up to $10 billion for hospitals statewide, according to the Healthcare Association of New York State, a nonprofit that advocates for hospitals in the state.
Because of changes in the way funding is distributed within the state, CRMC would be one of the few hospitals to actually gain funding — about $294,000 — in spite of about $2.4 billion in Medicaid cuts proposed in Spitzer’s budget, HANYS spokesperson William Van Slyke said.
However, $2.8 billion in proposed cuts to Medicare funding and $4.7 billion in Medicaid payments cuts under the president’s proposed budget would decrease funding to CRMC by about $2.6 million, Van Slyke said, meaning that ultimately CRMC will see a total loss of about $2.3 million in funding over the next five years. “While the question of what’s this mean to the hospitals is critical, what’s more critical is what’s it going to mean to the communities they serve,” Van Slyke said. “When a hospital is all of the sudden staring in the face of a significant shortfall, there’s only a handful of places you can look — do you eliminate or cut back on services? Does it have an impact on patient care? — administrators are going to have some agonizing choices to make.”
Tom Quinn, director of marketing at CRMC, said he had seen HANYS’ figures, and that they were essentially accurate.
Quinn agreed that it could affect the hospital’s ability to offer services.
“We’re very concerned that the magnitude of the cuts proposed by President Bush will potentially result in weakened access for patients — and not just in Cortland, but across the state,” Quinn said. “I think a lot of it is going to be keeping up with rising costs — pharmaceuticals, medical equipment, labor, supplies — everything is getting more expensive and any loss in revenue certainly doesn’t help.”
Quinn said he agrees that reform in the health care industry is necessary, but that cutting hospitals’ budgets is not the way to achieve it.
“Hospitals need to grow and modernize, and cutting their budgets just sets them behind,” Quinn said. “I think the best way to reduce costs is preventive medicine and effective treatment of chronic illness, but that’s something that’s going to take a serious, long-term commitment.”
Both Van Slyke and Quinn said they were hopeful that the state Legislature and Congress would fight to reduce the proposed cuts in both the state and federal budgets.
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Home > Member Directory > Jun He > Articles > China: Immigration Law Takes Effect; Implementing Regulations Issued
China: Immigration Law Takes Effect; Implementing Regulations Issued
Submitted By Firm:
Contact(s):
Jeffrey Wilson
China took steps to compete an overhaul and tightening of the country’s work authorization rules with the enforcement of the Entry-Exit Administration Law on July 1, 2013 and the announcement of implementing rules on July 22, 2013.
The key points of the Entry-Exit Administration Law relating to the employment of foreign nationals are:
The law defines “unlawful employment” as:
working without a valid work permit and residence permit;
working outside the location or scope of responsibilities stated in a work permit (i.e., working at different employer or in another city than stated in a work permit); or
working outside the scope of a student permit.
Maximum fines on employers that illegally employ foreign nationals are increased from RMB 50,000 to RMB 100,000.
Maximum fines on illegally employed foreign nationals are increased from RMB 1,000 to RMB 20,000. In “serious circumstances”, illegally employed foreign nationals may be detained for 5-15 days, or even deported and barred from entering China for up to 10 years.
Foreign nationals entering China will be required to register their accommodations within 24 hours nationwide.
The implementing regulations, entitled the Foreigner Entry-Exit Administration Regulations, will take effect on September 1, 2013 and replace rules that were issued in 1986.
Among the highlights of the implementing regulations:
A new “M” visa will be available for commercial and trade activities (i.e., a business visa). The “F” visa, which currently covers such activities, will be limited to non-commercial activities.
“L” visa is limited to tourism.
“Q” visa is for persons who apply to enter for family reunification or short term visits of Chinese nationals or foreigners with permanent residency.
“S” visa is for those who apply for visit a foreigner with a residence permit.
“Z” visa for employment remains unchanged. Draft regulations circulated in May 2013 divided the “Z” visa into two types depending on the length of stay in China.
“R” is for “senior-level and professionals in short supply”. A list of eligible positions that are considered to be in short supply will be issued.
Foreign nationals holding “X” visas (student visas) are permitted to take part-time jobs and internships with the approval of their schools and registration with the Public Security Bureau (PSB).
Employers are required to file reports with the PSB when foreign nationals are not longer employed or serving internships.
Foreign nationals will be fingerprinted by the PSB when they apply for residence permits.
Although the regulations do not address transitional measures, visas issued before September 1, 2013 are expected to remain valid after September 1, 2013 until their expiration.
In other recent work authorization developments: Beijing requires legalized non-criminal record certificates Starting on July 1, 2013, the Beijing Labor Bureau requires employers to submit non-criminal record certificates on behalf of their foreign national employees when the employers file applications for foreign employment licenses and foreign expert licenses (which is the first step in the work authorization process). Non-criminal record certificates will be also required for foreign nationals possessing work permits or foreign expert certificates issued outside of Beijing who transfer to Beijing for employment.
A non-criminal record certificate must be legalized by a PRC consulate or embassy in the country of issuance.
The Beijing Labor Bureau has indicated that Hong Kong, Macao, and Taiwan residents applying for work authorization are exempt from the new requirement.
Guangzhou introduces 72-hour transit visa Guangzhou will join Beijing and Shanghai with a 72-hour transit visa policy starting from August 1, 2013.
Chengdu is also approved to introduce the 72-hour transit visa transit policy; the implementation date will be announced separately.
The policy in the four cities applies to visitors from the United States, Canada, Australia, the United Kingdom, Germany, France, South Korea, and 38 other countries.
Among transit visa requirements is a confirmed airplane ticket to a third country, Hong Kong, or Macao with a scheduled departure within 72 hours upon entry into one of the cities. A foreigner national holding a transit visa may not leave the city of entry during the permitted 72-hour stay.
Longer processing times for residence permit applications Public Security Bureaus of Beijing, Shanghai, Guangzhou and most other major cities announced a uniform policy of 15 working days to process initial applications and renewals for residence permits. The uniform processing time for residence permit deregistration is seven working days. Passports will be kept at the local PSBs during the entire processing time.
In addition, the Beijing PSB practice now requires that an employer’s actual working address must match the registered address on the business license when foreign nationals apply for new residence permits and renewals as well as for extensions of business visas. If the PSB finds that the addresses are not consistent, the foreign nationals may be required to leave China.
Foreign Expert Permit required for “Shanghai residence card” Effective July 1, 2013, a foreign expert permit is required for all foreign nationals who apply for new residence cards or renewals in Shanghai. (Residence cards are different from residence permits and entitle holders to additional benefits, such as enrollment of children in local public schools.)
Before July 1, 2013, a work permit was sufficient for a foreign national to apply for a Shanghai residence card. Residents of Hong Kong, Macao, and Taiwan may continue to apply for residence cards based on only work permits.
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Altra Industrial Motion Inc.Altra Industrial Motion Inc. has multiple locations in the U.S., as well as Central America, Europe, and Asia. The Employment Law Alliance has proved to be a great asset in assisting us in dealing with employment issues and matters in such diverse venues as Mexico, Australia, and Spain. We have obtained excellent results using the ELA network for matters ranging from a multi-state review of employment policies to assisting with individual employment issues in a variety of foreign jurisdictions.In one instance, we were faced with an employment dispute with a former associate in Mexico that had the potential for substantial economic exposure. The matter had been pending for over a year, and we were not confident in the employment advice we had been receiving. I obtained a referral to the ELA counsel in Mexico, who was able to obtain a favorable resolution of the dispute in only a few days. Based on our experiences with the ELA, we would not hesitate to use its many resources for future employment law needs. American University in Bulgaria
In my career I have been a practicing attorney, counsel to the Governor of Maine, and CEO of a major public utility. I have worked with many lawyers in many settings. When the American University in Bulgaria needed help with employment litigation in federal court in Syracuse, New York, we turned to Pierce Atwood, the ELA member we knew and trusted in Maine, for a referral. We were extremely pleased with the responsiveness and high quality of service we received from Bond Schoeneck & King, the ELA's firm in upstate New York. I would not hesitate to recommend the ELA to any employer.
David T. Flanagan
Member of Board of Trustees Arcata Associates
I really enjoyed the Conducting an Effective Internal Investigation in the United States webinar. We are in the midst of a rather delicate employee relations issue in California right now and the discussion helped me tremendously. It also reinforced things that you tend to forget if you don't do these investigations frequently. So, many, many thanks to the Employment Law Alliance for putting that webinar together. It was extremely beneficial.
Lynn Clayton
Barrett Business Services, Inc.I recently participated in the ELA-sponsored webinar on the Employee Free Choice Act. I was most impressed with that presentation. It was extremely helpful and very worthwhile. I have also been utilizing the ELA's online Global Employer Handbook. This compliance tool is absolutely terrific. I am familiar with several other products that purport to provide up-to- date employment law information and I believe that this resource is superior to other similar compliance manuals. I am delighted that the ELA provides this free to its members' clients.Boyd Coffee CompanyEmployment Law Alliance (ELA) has provided Boyd Coffee Company with a highly valued connection to resources, important information and learning. With complex operations and employees working in approximately 20 states, we are continually striving to keep abreast of specific state laws, many of which vary from state to state. We have participated in the ELA web seminars and have found the content very useful. We appreciate the ease, cost effectiveness and quality of the content and presenters offered by these web seminars. The Global Employer Handbook has provided our company with a very helpful overview of legal issues in the various states in which we operate, and the network of attorneys has helped us manage issues that have arisen in states other than where our Roastery and corporate headquarters are located in Portland, Oregon.Capgemini Outsourcing Services GmbHAs an international operating outsourcing and consulting supplier Capgemini has used firms of the Employment Law Alliance in Central Europe. We were always highly satisfied with the quality of employment law advice and the responsiveness. I can really recommend the ELA lawyers.Hirschfeld Kraemer
As an employment lawyer based in San Francisco, I work closely with high tech clients with operations around the globe. Last year, one of my clients needed to implement a workforce reduction in a dozen countries simultaneously. And they gave me 48 hours to accomplish this. I don't know how I could have pulled this off without the resources of the ELA. I don't know of any single law firm that could have made this happen. My client received all of the help they needed in a timely fashion and on a cost effective basis.
Stephen J. Hirschfeld
Partner Hollywood Entertainment CorporationAs the Vice President for Litigation & Associate General Counsel for my company, I need to ensure that we have a team of top-notch employment lawyers in place in every jurisdiction where we do business. And I want to be confident that those lawyers know our business so they don't have to reinvent the wheel when a new legal matter arises. With more than 3400 stores and 35,000 employees operating in all 50 U.S. states and across Canada, we rely on the ELA to partner with us to help accomplish our objectives. I have been delighted with the consistent high quality of the work performed by ELA lawyers. I encourage other in-house counsel to use their services, as well.Ingram MicroIngram Micro is the world's largest technology distributor, providing sales, marketing, and logistics services for the IT industry around the globe. With over 13,000 employees working throughout the U.S. and in 35 international countries, we need employment lawyers who we can count on to ensure global legal compliance. Our experience with many multi-state and multi-national law firms is that their employment law services are not always a high priority for them, and many do not have experts in many of their offices. The ELA has assembled an excellent team of highly skilled employment lawyers, wherever and whenever I need them, and they have proven to be an invaluable resource to our company.Konami Gaming
Our company, Konami Gaming, Inc., is growing rapidly in a very diverse and highly regulated industry. We are aggressively entering new markets outside the domestic U.S., including Canada and South America. I have had the recent opportunity to utilize the services provided by the ELA. The legal advice was both responsive and professional. Most of all, the entire process was seamless since our Nevada attorney coordinated the services and legal advice requested. I look forward to working with the ELA in the future, as it serves as a great resource to the legal community.
Nikkiso Cryo, Inc.Until recently, I was unaware of the ELA's existence. We have subsidiaries and affiliates throughout the United States, as well as in Asia, the Middle East and Europe. When a recent legal issue arose in Texas, our long-time Nevada counsel, who is a member of the ELA, suggested that this matter be handled by his ELA colleague in Dallas. We are very pleased with the quality and timeliness of services provided by that firm, and we are excited to now have the ELA as an important asset to help us address employment law issues worldwide.Palm, Inc.
The ELA network has been immensely important to our company in helping us address an array of human resources challenges around the world. I strongly encourage H.R. executives who have employees located in many different jurisdictions to utilize the ELA's unparalleled expertise and geographic coverage.
Stacy Murphy
Former Senior Director of Human Resources
Rich Products
As the General Counsel for a company with 6,500 employees operating across the U.S. and in eight countries, it is critical that I have top quality lawyers on the ground where we do business. The ELA is an indispensable resource. It has taken the guesswork out of finding the best employment counsel wherever we have a problem.
Jill K. Bond
Senior Vice President/General Counsel, Shared Services and Benefits
Ricoh Americas CorporationWe have direct sales and service offices all over the U.S., but have not necessarily had the need in the past for assistance with legal work in every state where we have a business presence. From time to time, we suddenly find ourselves facing a legal issue in a state where we have no outside counsel relationship. It has been a real benefit to know that the ELA has assembled such an impressive team of experts throughout the U.S. and overseas.
A few years ago, we faced a very tough discrimination lawsuit in Mississippi. We had never had to retain a lawyer there before. I was absolutely delighted with the Mississippi ELA firm. We received an excellent result. They will no doubt handle all of our employment law matters in Mississippi in the future. I have also obtained the assistance of several other ELA firms around the U.S. and have received the same outstanding service. The ELA is a tremendous resource for our company.Roberts-Gordon LLCOur affiliated companies have used the Employment Law Alliance in connection with numerous acquisitions, and have always been extremely pleased with our ability to obtain the highest quality legal advice on due diligence issues from jurisdiction to jurisdiction. We have found the Employment Law Alliance firms to be not only first rate with respect to their legal advice but also responsive and timely in assisting us with federal and state law issues critical to our due diligence efforts. We consider the Employment Law Alliance to be an important part of our team.Rockwell Collins, Inc.
We have partnered with many ELA firms on the development and execution of case management strategies with very positive results. We have been very pleased with the legal advice and counsel provided by the law firms we have utilized who are affiliated with the Employment Law Alliance. The ELA firms we have worked with are customer focused, responsive, and thorough in their approach to handling labor and employment law matters.
Elizabeth Daly
Sanmina-SCISanmina-SCI has facilities strategically located in key regions throughout the world. Our customers expect that we will provide them with the highest quality and most sophisticated services in the marketplace. We have that same expectation for the lawyers with whom we do business. With operations in 17 countries, we need to be certain that we have a team of lawyers working together to address our employment law needs worldwide. The ELA has delivered exactly what it promised-- seamless and consistent high quality services delivered in each locale around the globe. It has quickly become a key asset for our human resources department.StarwoodWe own, manage, and franchise hotels throughout the U.S. and in more than 90 countries. With more than 145,000 employees worldwide, ensuring that we comply with the complex web of local labor and employment laws in every one of these jurisdictions is a daunting task. The Employment Law Alliance has served as an important resource for us and we have benefited greatly from its expertise and long reach. When a legal dispute or issue has arisen in some far-flung place, Employment Law Alliance lawyers have always provided responsive, practical, and cost-effective assistance. Wilmington Trust Corporation
Wilmington Trust has used the ELA to locate firms in California, Washington State, Georgia, and Europe. Our experience with the ELA lawyers with whom we have worked has always been one of complete satisfaction and prompt, practical advice.
Michael A. DiGregorio
General Counsel ..read all »
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Inspections, Compliance, Enforcement, and Criminal Investigations Criminal Investigations
June 2, 2011: Licensed Practical Nurse Charged with Tampering
Food and Drug Administration Office of Criminal Investigations U.S. Department of Justice Press Release For Immediate Release June 2, 2011 United States Attorney District of Kansas Wendy M. Parmenter, 37, Emporia, Kan., a licensed practical nurse, is charged with one count of tampering with a consumer product and one count of adulterating a prescription drug. The crimes are alleged to have occurred in November 2010, in Lyon County, Kan. The indictment alleges the crimes took place while Parmenter was working as an LPN at Rolling Hills Health Center in Topeka, Kan., which is a nursing home. Parmenter was addicted to Hydrocodone, a painkiller, and frequently ingested morphine prescribed to her patients. When two empty bottles of morphine sulfate were discovered at Rolling Hills Health Center, the nursing director ordered personnel with access to narcotics to have oral swab drug tests. Parmenter failed the drug tests. She passed two subsequent urine drug tests because she convicted another employee to provide urine that she submitted as her own. A 105-year-old woman who was a patient in the hospital was suffering from dementia and chronic pain. Her physician prescribed morphine sulphate for the pain. Parmenter ingested morphine from the patient’s bottle and added tap water to the bottle to disguise the theft. If convicted, Parmenter faces a maximum penalty of 10 years and fine up to $250,000 on the charge of tampering with a consumer product and a maximum penalty of three years and a fine up to $250,000 on the charge of adulterating a prescription drug. The Food and Drug Administration investigated. Assistant U.S. Attorney Tanya Treadway is prosecuting. ### More in Criminal Investigations
Prior Years' Press Releases
OCI's Most Wanted Fugitives
Office of Criminal Investigations (OCI) Most Wanted Fugitives
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Search The Grantham Journal
Grantham solicitors pay tribute to Jane, 42
A company has paid tribute to one of its Partners who died suddenly at the age of 42 earlier this month.
Jane Overland was Equity Partner and Head of the Property Law and Conveyancing Department at Bird and Co Solicitors.Jane joined the firm in 1996 as secretary to the then Senior Partner Michael Bird. She worked her way up through the ranks, studying for her Law finals part-time while working full-time. She qualified as a solicitor in 1999.
Jane worked in the Family Law Department and the Property Law and Conveyancing Department. In 2001 she became an Associate Solicitor and from 2003 was head of that department.
Jane became a full Equity Partner in 2003. She worked at the Grantham, Newark and Lincoln branches of Bird & Co.Christopher Milligan, Senior Partner at the firm, said: “She was well respected and I know I, her other Partner Estelle Conron and all the staff pass on our sincerest sympathies and condolences to her husband Adam and her parents Graham and Penny MacFarlane and her brothers John and Richard. She is going to be sorely missed.”Estelle Conron, Managing Partner at the firm, said Jane had been a good friend since they had started at the firm together as young lawyers in the mid 1990s. She said Jane was the ultimate professional as well as being big hearted and great fun.She was a member of Newark Business Club and a tireless fund raiser, most recently for Sue’s Place Bereavement Centre in Newark. Jane was a keen cyclist and skier. She liked a glass of red wine, cars and Newark RUFC.
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Deconstructing Bessen and Meurer - paper raises big questions over their NPE claims 27
James Bessen and Michael Meurer have published a number of highly-publicised papers and books attacking what they see as significant flaws in the US patent system and claiming that these cost American companies – large and small – billions of dollars that could otherwise be spent on what they see as more productive things, such as R&D. Most recently, the pair published an article entitled The Direct Costs from NPE Disputes in which they reported that US “firms accrued $29 billion of direct costs in 2011” as a result of NPE-related litigation. This was given significant and almost entirely unquestioning coverage by a number of mainstream news sources (although both the Patentology and Gametime IP blogs took issue with it). Because Bessen and Meurer do get such wide coverage, it is vital that what they say is subjected to in-depth examination. They make big claims, involving huge numbers; both of which are bound to affect overall debate on, and potentially decision-making around, the patent system. Therefore, they have to be right. But when you speak to people who operate day in and day out in the patent market, many say they aren’t – that, actually, there are some pretty major flaws in their methodologies that will lead them to overstate problems and exaggerate numbers. You get the feeling that many read what Bessen and Meurer write with frustration as “but, but, but, but this is just plain wrong …” rings around their heads. That, of course, is not an adequate response. You can’t just “feel” something is wrong, you have to show that it is. On Wednesday, the critics of Bessen and Meurer were handed what could be a very important weapon with the publication of a paper entitled Analyzing the Role of Non-Practicing Entities in the Patent System. Written by David Schwartz of Chicago-Kent College of Law and Jay Kesan of the University of Illinois College of Law, the paper’s abstract reads: Currently, there is an important debate about the role of non-practicing entities in patent litigation. People are asking: what are the costs and benefits associated with NPE litigation? Are they too high, too low, or just right? This paper makes two contributions to the discussion. First, we review a recent study, "The Direct Costs of NPE Disputes," by James Bessen and Michael J. Meurer. The study presents new data on the litigation costs and settlement expenses incurred by a subset of defendants in NPE cases. Some of their findings are provocative, but we find their methodology to be deficient in several respects, which limits the usefulness of the data and thus the implications that can be drawn from them. We also offer suggestions for future research on NPEs, including data collection and analysis. Second, we argue that the study asks the wrong question. The debate should be reframed to focus on the merits of the lawsuits, including patent system changes focusing on reducing transaction costs (e.g., lawyers’ fees) in patent litigation, instead of focusing solely on whether the patent holder is a non-practicing entity. Schwartz and Kesan do not say that Bessen and Meurer are wrong about NPEs, but what they do say is that for their claims to be regarded as credible, there are four issues that the Boston University academics have to provide a great deal more clarity on: (1) Figures Based on Biased Sample. Bessen & Meurer’s $29 billion calculation of the direct cost of NPE patent assertions should be viewed as the highest possible limit. The true number is very likely to be substantially lower. It is the outer bound because the survey is not a random sample; instead it likely is a biased sample, which renders Bessen & Meurer’s extrapolation of the total costs similarly biased too high. (2) Lack of Basis for Comparison of Figures. The vast majority of the $29 billion figure consists of settlement, licensing, and judgment amounts. For economists, these are not “costs,” as they are classified in the Bessen & Meurer study, but rather “transfers.” Such transfers to patent holders are the contemplated rewards of the patent system. Furthermore, before declaring litigation costs (i.e., lawyers’ fees) too high, there must be some basis for comparison. Bessen & Meurer provide no such comparison. For further academic studies, we propose comparing them to either the ratio of lawyers’ fees to settlements in practicing entity patent litigation or complex commercial litigation more broadly. (3) Questionable Definition of NPE. Bessen & Meurer’s calculations rest upon a questionable and very broad definition of NPE. We suggest that they disaggregate among different categories of NPE, which should be possible with RPX’s database. (4) Lack of Credible Information on Benefits of NPEs. Bessen & Meurer’s estimate of the benefits of NPE litigation is based upon an analysis of very limited information, namely SEC filings from 12 publicly traded NPEs. We recommend a survey of NPE plaintiffs analogous to the survey of NPE defendants to provide more complete information on this issue. Furthermore, Schwartz and Kesan state: In general, we believe that focusing on whether the patent holder is an NPE or practicing entity is the wrong question. Our point is not to extol or criticize NPEs. There surely are some NPEs that are bad actors and some that are good actors. Instead, our goal is to focus the conversation on the right question: analyzing the merits of the cases, and locating ways to reduce patent litigation expenses by creating or improving institutional mechanisms to address patent validity and patent infringement. While they also note that the data Bessen and Meurer base their claims on was supplied by defensive patent aggregator RPX; leading them to state: A large portion of RPX’s business model is providing subscriptions to customers who are repeat defendants in patent infringement lawsuits. RPX asserts that its subscription fees “are significantly lower than the typical patent acquisition and defense costs a client would otherwise face.”6 It seems extremely likely that RPX’s clients have experienced high litigation costs, perhaps much higher than the average company. As such, the survey has a strong selection bias here in favor of companies that are repeat defendants in NPE litigation and thus need the services of RPX to reduce future patent liabilities. In other words, high litigation costs are probably the reason the companies became RPX clients in the first instance We also believe that Bessen & Meurer should include more disclosure about the methodology. That is especially important here because it appears that they do not have personal access to some or all of the underlying RPX data. All in all it is a highly compelling piece of work. As Schwartz and Kesan state, it could well be that Bessen and Meurer are absolutely bang on the money. However, right now it is impossible to reach such a conclusion. In fact, as things stand the likelihood is that they are wrong, perhaps spectacularly so. The onus now is surely on the Boston University pair to respond to the points Schwartz and Kesan have made. Let us hope they do so sooner rather than later.
Analysing the role of NPEs in the patent system
Report for US lawmakers gets it horribly wrong on NPEs
There are now very serious questions to be asked of that Bessen and Meurer $29 billion NPE costs claim
SHIELD: a deeply flawed response to an unquantified problem
The cost of NPE disputes in the US and the $16.8 billion gap between RPX and Bessen & Meurer
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Nathaniel R. Howse, Jr. Appellate Judge
Nathaniel R. Howse, Jr.
First District, 4th Division Justice Nathaniel R. Howse, Jr. received his undergraduate and law degrees from Loyola University of Chicago. He was in private practice for 22 years before becoming a judge. He represented clients before the Illinois Circuit Court, the Illinois Appellate Court, the Illinois Supreme Court, the Federal District Court and the Seventh Circuit Court of Appeals. In November 1998, Justice Howse was elected to a six-year term to the Office of Judge of the Circuit Court of Cook County. In November 2004, he was retained by the voters of Cook County for another six-year term. In August 2009, Justice Howse was assigned to serve as an Appellate Court Justice for the Illinois Appellate Court, First District, by the Illinois Supreme Court. In November 2012, Justice Howse was elected as a Justice of the Illinois Appellate Court, First District, where he currently serves.
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The latest revisions to the Federal Rules of Civil Procedure
On December 1, 2015, revisions to the Federal Rules of Civil Procedure took effect and will have a direct impact on the way that all cases, including patent and other IP cases, are litigated in federal courts. On April 29, 2015, the Supreme Court adoptedthe amendments and stated that the amendments shall govern all civil case proceedings commenced after December 1, 2015, and “insofar as just and practicable, all proceedings then pending.”1 Thus, the new rules will not only apply to new cases filed after December 1, but also to previously-filed cases upon request. The most significant changes will impact discovery. Generally speaking, the scope of information that may be obtained in discovery under the new rules is less expansive than the previously-allowed information that “appears reasonably calculated to lead to the discovery of admissible evidence.”2 The new rules have tightened the scope of discoverable information to any nonprivileged, relevant matter that is “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”3
The Advisory Committee’s Notes on the 2015 Amendment explain that these changes consider the realities of discovery costs on the parties, especially costs that are “exacerbated by the advent of e-discovery.”4 The Committee further acknowledges that the information possessed by the parties on the relative burden and proportionality of discovery will differ and that these issues should be addressed during the parties’ 26(f) conference. For larger defendants litigating against a smaller plaintiff, such as a non-practicing entity, the Advisory Committee acknowledges that the burden of responding to discovery requests is larger due to the greater amount of information in possession of the larger party. However, this burden should not prevent a larger defendant from explaining to the court the reasons why certain kinds of discovery may be too expensive or onerous to disclose, relative to the importance of a plaintiff’s claims. The larger party may simply be the only party that can fully describe the costs associated with a smaller plaintiff’s request.5 Although the revisions to Rule 26 remove the specific language describing permissible discovery, e.g.,“including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter”,6 the Advisory Committee indicates that this should not change the way that requests are propounded. Discovery of these topics, the Committee notes, “is so deeply entrenched in practice” that they do not require mention and that the topics should be open to other kinds of information.7 Specifically, the Committee notes that requests for ESI “may require detailed information about another party’s information systems and other information resources.”8 This may include, for example, a party’s typical data storage practices and services employed to back up and share electronic documents, e-mails, or instant messages.
The new Rules further provide an expedited schedule in the early stages of a case, such as requiring a court to issue a scheduling order within 60 days of a defendant being served, instead of the previous 90-day deadline.9 Discovery may also be expedited with “Early Rule 34 Requests”10 that allow service of document requests just 21 days after the summons and complaint are served, even before a Rule 26(f) conference has been scheduled. The logic behind this provision is that a Rule 26(f) conference may be more productive if the parties better understand the scope and types of documents that will be sought in a case. Responses to an early Rule 34 request can be served 30 days after the Rule 26(f) conference date, since the date of the conference is the date that the early Rule 34 request is deemed served.11
The scheduling order itself may cover more topics than the previous Rules suggested, in order to provide a more efficient way to resolve disputes without a formal motion. The Rules again expand ESI topics in the scheduling order to the preservation of ESI in addition to disclosure and discovery.12 Further, parties are permitted to include agreements on the effect of disclosing attorney-client privileged or work product communications under Federal Rule of Evidence 502.13 Finally, for a movant wishing to compel discovery or request a protective order, the scheduling order may direct the movant to request a conference with the court before moving for the order.14
Other revisions to the Rules further clarify the manner of responding to discovery requests and remedies for failing to produce. Objections to requests must now affirmatively state “whether any responsive materials are being withheld on the basis of that objection.”15 Although a producing party does not need to provide a detailed log of withheld documents, the Advisory Committee states that the affirmation of a party’s withholding should “end the confusion that frequently arises when a producing party states several objections and still produces information.”16 As a practical matter, this may have a significant impact on common litigation practice under the old Rules, under which parties would regularly lodge broad objections to document requests at the outset and concurrently or thereafter conduct a search to identify responsive documents (a process that often takes far longer than the 30-day period for service of objections under Rule 34). With the revisions, the Rules now require the parties to note which specific objections are related to withholding discovery. For electronically stored information (ESI), a responding party may state that documents will be produced instead of permitting inspection, but responsive ESI “must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.”17
Failure to preserve ESI may now warrant sanctions imposed by a court or other remedial measures. If lost, ESI “should have been preserved in the anticipation or conduct of litigation” and a party “failed to take reasonable steps to preserve it” the court may order “measures no greater than necessary” upon finding that the loss of ESI prejudiced another party.18 The prescription of these measures is intentionally broad and meant to enlist the court’s discretion. If a party acted with malicious intent to remove the ESI, three other remedies may occur: i) the lost information may be presumed unfavorable to the party ii) the court may instruct the jury to presume that the information was unfavorable or iii) in a worst case, dismiss the action or enter a default judgment.19 However, the listing of these remedies is not a talisman and lesser measures may be more appropriate if “the information lost was relatively unimportant.”20
The amendments to the Federal Rules of Civil Procedure largely emphasize the growing importance and necessity of ESI, and the desire to decrease litigation delays, especially at the start of a case. While the scope of discovery described in Rule 26 appears to be more narrow than the previous Rules, parties will nevertheless need a jumpstart on case strategy and document collection efforts in order to avoid sanctions and comply with an expedited schedule.
Baker Botts LLP -
Jessica Lin Filed under
Amdocs v. Openet: Opening a Software Rift in Alice’s Wonderland
* Arbitration in the UAE - Lexology Navigator Q&A
* Continued Misappropriation After May 2016 Allows Cause of Action Under Defend Trade Secrets Act
* Arbitration in the UAE - DIFC - Lexology Navigator Q&A
* Arbitration agreements in the UAE - DIFC
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NYC sues FedEx over cigarette deliveries NYC sues FedEx over cigarette deliveries print
December 30, 2013 10:10 p.m.
NEW YORK (AP) — The City of New York filed a civil lawsuit on Monday accusing FedEx of illegally delivering tons of untaxed cigarettes to city residents from a distributor on an Indian reservation on Long Island.
The suit, filed at a federal court in Manhattan, accuses FedEx of knowingly violating the terms of a 2006 settlement with New York's attorney general in which the company agreed to stop all deliveries of mail-order cigarettes to state residents.
City lawyers said that even as that deal was being negotiated, FedEx continued to deliver cigarettes from select tobacco dealers, including the Shinnecock Smoke Shop, located on the Shinnecock reservation in eastern Long Island.
Between 2005 and 2012 the company shipped at least 55,000 cartons of cigarettes from the shop to consumers in New York City, according to the lawsuit. That total — an estimated 20 tons — doesn't include cartons shipped elsewhere in the state or the country.
FedEx had a public policy of not delivering cigarettes to homes anywhere in the U.S., but the city claims the shipper ignored that policy when it came to the Shinnecock shop. The suit said FedEx even signed a written agreement giving the smoke shop discounted rates because it was doing so much business.
The city is seeking $825,000 in lost tax revenue, plus nearly $2.5 million in penalties.
FedEx said in a statement that it supported the city's efforts to stop illegal cigarette shipments and had ceased doing business with the shop involved, but it said the city's claims are "overstated and not founded in law."
The phone rang unanswered at the Shinnecock Smoke Shop on Monday evening.
In March, FedEx agreed to pay the city $2.4 million to settle an accusation that it delivered 70 tons of untaxed cigarettes from a mail-order company in Kentucky. That company was shut down by federal agents in 2009. FedEx said at the time that it was paying the money to avoid expensive litigation, and not because it had done anything wrong.
New York City's legal department has also sued smaller delivery companies that did business with cigarette shops based on the state's Indian reservations.
Cigarette dealers on tribal land do a brisk business supplying cigarettes to New York smokers at huge discounts, because the packs do not carry state or city taxes, which can drive up the price by as much as $5.85 per pack.
That business has been chiseled away somewhat in recent years by lawsuits and federal laws, which now make it illegal to ship cigarettes through the U.S. mails and also put restrictions on private delivery companies.
Woman sentenced for trying to frame ex through Facebook
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“…and our posterity”
This little-noticed phrase in the Preamble to our Constitution has profound significance for laws and governing. If taken seriously it could force us to think entirely differently about laws and government.
The Preamble justifies our Constitution as the basis for forming a more perfect union, establishing justice, insuring domestic tranquility, providing for the common defense, promoting the general welfare, and securing the blessings of liberty “to ourselves and our posterity.” Most scholars, though not all, conclude that “our posterity” applies to securing the blessings of liberty. Some believe we must take into account “our posterity” in achieving all of the Constitution’s purposes.
Either way, the idea that future generations have a stake in carrying out the Constitution’s objectives is profound. When we go to war or even just buy weapons, when we act or do not act on climate change, when we do or do not reform health care, when we preserve wilderness or extract non-renewable resources, when we bail out banks and industries, when we do these and many, many more things, we do so not only for ourselves but also for our posterity, as far into the future as we can imagine generations.
Though political figures often acknowledge “our children and grandchildren” in their speeches, when you listen to political arguments today they almost always have to do with how will this or that affect me, right now, in my life. Almost all of our concerns are about the impact of decisions on ourselves and our lives.
Assuming our Founders to have been serious people and most of all those who chose words carefully who knew they were writing for the ages, we can assume they meant what they said. We are to take into account the impact on our posterity’s achievement of the blessings of liberty, and perhaps much more, when we make important public decisions.
We all leave some kind of legacy. For the fortunate it is often money and property. For the humble it is usually just our example. That is our private legacy. Why can we not also see that we also leave a public legacy, our nation, its resources, a peaceful or warlike planet, the global environment, and much more. By adding “…and our posterity,” the Founders placed upon us a profound moral duty.
10 Responses to ““…and our posterity””
Tom Gee Says:
October 12th, 2009 at 9:31 am So appropriate. As only one example, every time I hear someone join in the health care debate as if they were the only person to be served by reform, forget the 40 million without insurance coverage, I get so frustrated. Thank you, Senator Hart, for continuing your much-needed civics lessons.
October 12th, 2009 at 11:31 am Tom hits the nail on the head. Whatever we do, or do not do, on health care will affect our children and future generations (like Social Security, Medicare, and much else) much more than it will those of us now raising all fuss.
October 12th, 2009 at 2:08 pm I’m afraid the founders could never envision the kind institutional and systemic corruption that defines our political culture today. Most Americans are living with an unprecedented amount of stress in their daily lives which would be greatly alleviated if those with the power in Washington took the words “promote the general welfare” (which is repeated in Article 1 Section 8 as “provide for the common defense and general welfare of the United States”) seriously. If that were the case, basic issues like health care would have been solved a long time ago, just as they have been in every other advanced economy on earth, and posterity would take care of itself. But our corrupt system prohibits solving those kinds of problems in a rational way that benefits the general welfare and thus future generations. I have a two-year old daughter who has dual nationality and, as her American father, I’m very sad to say that it is her French citizenship which will probably insure a good quality of life for her when she is my age.
Zachary Kolodin Says:
October 12th, 2009 at 2:41 pm Thank you very much for highlighting this. The nonprofit organization that I run, Young People First, is building an accountability system around this very principle: it is called the Future Preparedness Index, and it will measure progress toward long-term goals critical to younger generations. We train students and other young people to analyze legislation to hold our political leaders accountable to these goals. We’re trying to build a permanent constituency to hold legislation accountable to sustainable national prosperity and security. I would love to have the opportunity to discuss our work with you further.
Zach Kolodin
October 13th, 2009 at 2:10 pm I find it difficult to quarrel with Michael’s assessment, especially when the classic republican definition of corruption is applied, that is placing special interests above the national interest (which includes the interests of our progeny). And I applaud Mr. Kolodin’s project. Perhaps if law makers and government officials had to confront an obligation to be accountable to the next generation, they might begin to consider more seriously the implications of their decisions, decisions too often made with an eye on the next election not the next generation.
Lubna Dovel Says:
October 14th, 2009 at 1:25 pm This is the first time I have read one of your articles/blog entries, and I must say that I am impressed. For one, I think I have to look you up in order to tell which side of the aisle you sit on, for your comments (I read your other entries before saying anything) are very common sense and non-partisan. Having never been very interested in politics, this past national election and the process behind it has both inspired and frightened me, and I look forward to learning more, and to reading more of your thoughts. I appreciate that you are more about the actual Constitution and what it was intended to be by the founding Fathers, and not its interpretation by the greedy or naive elite who are mostly concerned about what it does for them and not its effects on future generations.
October 14th, 2009 at 2:10 pm For Lubna Dovel: I am an American patriot; a citizen of the global commons; and a democratic republican. Thank you for your kind words about the site.
Tom J. Flaherty Says:
October 14th, 2009 at 9:11 pm The Commons would be a great topic
October 22nd, 2009 at 2:43 pm Stay tuned, Mr. Flaherty. Also see: The Shield and the Cloak: The Security of the Commons (Oxford Press, 2006)
Cassie Wallace Says:
February 21st, 2010 at 11:38 am Any tips or advice that can help is always appreciated.-Healthcare Help
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Place an Ad This Just In Settlement reached in trademark case
Staff ReportMONTPELIER - The Vermont Attorney General’s Office has reached a settlement with Trademark Monitoring Services Inc. of California, for mailing solicitations that misrepresented that businesses owed it money for trademark-related services. Under the settlement, TMS must strictly comply with Vermont and federal law regulating through-the mail offers, pay full refunds to the businesses that sent it money, and pay $10,000 to the state in penalties and costs. The Attorney General’s office has received a number of complaints from individuals and businesses concerning unauthorized billings by out-of-state companies. TMS offers services such as monitoring trademarks and service mark registrations and searching for similar trademarks. The cost of these services ranged from $485 to $1,285 per year. The company sent mailings to 18 Vermont businesses, resulting in payments by three of them, two of which stopped payment on their checks. In the absence of any evidence to the contrary, the Attorney General’s office concluded that the mailings misrepresented that businesses owed it money.In addition, TMS’ mailings did not contain as prominent a disclaimer as required by the U.S. Postal Service for through-the-mail solicitations that could reasonably be considered a bill, invoice or statement of account due. According to the state, these practices violated the Vermont Consumer Protection Act’s prohibition on unfair and deceptive acts and practices in commerce. For more information on the settlement, contact the Attorney General’s office at 828-5507.
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Schrauben enters plea to five counts in funeral home embezzlement
Pleads guilty to one, no contest to four more; accused of taking nearly $500,000 from customers and insurance companies
Former funeral home employee Marti James Schrauben appeared in Ionia County 8th Circuit Court late Tuesday morning before Judge David Hoort to enter pleas to five counts against him related to charges that he allegedly embezzled nearly $500,000 from customers and insurance companies from 2008 through 2010 while he was an employee at Schrauben-Lehman Funeral Home in Ionia.The benches on the prosecution's side of the court room were nearly filled. Michael Lehman, owner of Lehman Funeral Home, sat with his wife Lisa in the front row.Schrauben, of Portland, pleaded guilty to one count of uttering and publishing, which is a 14-year felony. In a prepared statement, he admitted preparing a false death certificate and presenting it to an insurance company, knowing it was false.Schrauben also pleaded no contest to four other counts: one count of forgery, a 14-year felony; one count of uttering and publishing, a 14-year felony; one count of insurance fraud, a five-year felony; and one count of embezzlement over $50,000 but less than $100,000, a 15-year felony. Schrauben originally was charged with 27 counts related to racketeering, embezzlement and other crimes. He allegedly created false death certificates and sent them to insurance companies to receive payment from funeral policies. He also allegedly accepted money for pre-paid funerals from customers of the funeral home and then, instead of placing the money into escrow accounts as required by state law, embezzled the money.Under the terms of the plea agreement, Schrauben agreed to pay full restitution of $496,381.70, an amount verified by the complainants and confirmed through an audit by the Michigan Department of Licensing and Regulatory Affairs (LARA). Schrauben's attorney also asked to audit the amounts. The plea document stated that, although both parties are in "substantial agreement" over the amount of restitution, either can request a restitution hearing. The amount to be paid back includes more than $184,000 for funerals provided by Schrauben-Lehman Funeral Homes without compensation. Lehman said in an interview with the Ionia Sentinel-Standard in July than he was honoring the funeral agreements customers made with the funeral home."You can't ask the family for more money," he said. "Trust is very important to me – it's an important word. You've got to have trust from the people you serve."Restitution also includes $54,000 paid to Schrauben Management instead of the funeral home for deposit into escrow, more than $82,000 in unearned interest from unfunded escrow or insurance policies cashed out early; almost $47,000 for funds taken from the funeral home's trust account; and nearly $129,000 for cashed out insurance policies.The agreement calls for Schrauben to pay $50,000 to Lehman on the date of his plea and voluntarily relinquish his state mortuary license within 14 days of the plea. In addition, his sentencing will be delayed for six months to allow him time to make another partial restitution payment of $200,000 to Lehman on or before his sentencing date. If he makes that payment as required, the remaining 22 counts against him will be dismissed. If Schrauben fails to make the payment as required, the plea agreement will be withdrawn and he will go to trial on the original charges. Schrauben must pay the balance of $246,381.70 in restitution during a five-year term of probation.The plea agreement also calls for the court to decide how much incarceration Schrauben could receive, but that will not exceed 12 months in the Ionia County Jail.Hoort ordered a pre-sentencing report and a DNA sample from Schrauben. William Rollstin, assistant attorney general for the State of Michigan, who appeared in court on behalf of the People, told Hoort that in reaching a settlement, he consulted with Michael and Lisa Lehman, "who don't view this as a perfect result but a move to financial stability." He noted that he, the Lehmans, and Ionia County Undersheriff Charlie Noll, who investigated the case, "agree we should move forward."The charges against Schrauben resulted from an investigation conducted by the Ionia County Sheriff's Department after a complaint was filed by the funeral home's owner. Schrauben was arrested July 26.Follow Karen Bota on Twitter @KarenB_ISS.
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Optional Member Code The Premise of Digital Surveillance Precludes Scholarship
Friday, 08 March 2013 00:00 By R. Lila Steinberg, Truthout | Op-Ed font size
(Photo: nist6ss / Flickr)Since 9/11, sweeping and indiscriminate digital surveillance of all computer and telecommunications users has been conducted, and more recently, systems have been developed to store every byte of that information forever. This means that if actors within some government agency decide to target you, they can immediately access every telecommunication: email, phone call, etcetera, that you have made or sent for years, as well as every web site you have visited.
While this practice clearly violates the Fourth Amendment (and similar laws in other countries), it has also been revealed by high-level National Security Agency insiders to be completely unnecessary to any real criminal investigative procedure.[1]
However, there is an even deeper and more fundamental error in the premise behind cataloguing and storing which webpages you have visited for use against you in the future. It is the misconception that you are in agreement with all materials you watch and read.
Merriam-Webster defines research as: "1. careful or diligent search 2. studious inquiry or examination; especially : investigation or experimentation aimed at the discovery and interpretation of facts, revision of accepted theories or laws in the light of new facts, or practical application of such new or revised theories or laws 3. the collecting of information about a particular subject."
A basic component of research, as any scholar will tell you, is in doing a comprehensive survey of the all historic models and theories, as well as keeping up with current discoveries, debates and opinions. In the information age, this means accessing thousands of webpages, including text, image and video. Many of those pages undoubtedly will contain outdated models, rousing debates and opinions divergent from your own. The work of a scholar is to sift through these volumes of information and try to compare various positions in order to come to a personal understanding of the present situation. For a scholar in the humanities, social sciences, philosophy or religion, this can mean studying any type of human or natural activity. For a scholar in any of the hard sciences, the same can be said, as research blurring this distinction is now commonplace.
For a journalist, this goes without saying.
Many Americans will find this obvious. After all, scholarship is complex. But what is scholarship? Who can be called a scholar? In the past, access to university libraries was carefully guarded, and women and people of color were routinely barred from entering. As Virginia Woolf famously writes in A Room of One's Own:
... here I was actually at the door which leads into the library itself. I must have opened it, for instantly there issued, like a guardian angel barring the way with a flutter of black gown instead of white wings, a deprecating, silvery, kindly gentleman, who regretted in a low voice as he waved me back that ladies are only admitted to the library if accompanied by a Fellow of the College or furnished with a letter of introduction.[2] A library represents knowledge. As the saying goes, knowledge is power. Keeping women from entering was a way of denying them power. The same can be said about denying people of color. Since the civil rights movement, physical access to libraries and universities has been greatly improved. Higher education is largely available to all, providing, of course, the resources are available or large debt is taken on. For those without the money or who prefer to study the world on their own, there is the Internet. This vast and intricate resource allows the scholar-researcher, whether in or out of college, publishing or not, to seek a wide and diverse array of content and knowledge.
However, a new "For Whites Only" or "For Men Only" sign has been erected in the last ten years, in the form of digital surveillance. This new prohibition of knowledge, however, is not prejudiced against women or people of color specifically, but against anyone outside of the surveillance apparatus and the halls of power.
How does it work? It operates on the principle of prior restraint. Prior restraint is a prohibition, usually governmental, "imposed on expression before the expression actually takes place." It is essentially like declaring: No one may speak or write about daffodils from now on. Period. The end. This is fundamentally unconstitutional. The First Amendment guarantees that Congress shall make no law abridging the freedom of speech, or of the press. This means you can say and write whatever you like, with only a few clearly enumerated (if frequently legally tested) limitations, such as those prohibiting libel or slander.
But the new prohibition of knowledge is even more insidious than traditional prior restraint. By collecting everyone's information and operating from the false premise that a web site visitor necessarily agrees with or would act in any way upon the content therein, the surveillance state has instituted thoughtcrime. This term from George Orwell's 1984 represents the codification of the false premise that a mental thought is the same as a physical action.
Anyone who has ever had to lose weight has experienced a craving for a particular food. Thinking about the food and actually eating it are two different things - one will put on pounds and the other won't. Likewise thinking, talking, writing or learning about a disgusting food doesn't mean you want to eat it. There are all sorts of TV shows in which people eat strange and disgusting foods. We are interested in these practices, but this does not mean we want to engage in them. Similarly, by the faulty reasoning of thoughtcrime, you would be guilty of (or at least capable of) every murder you have watched at the movies or on television, including the news, and every violent act in every book you've ever read. The ludicrousness of operating according to thoughtcrime is extremely obvious, and yet when it comes to web searches, people have somehow forgotten it.
Critical thinking is a term that has been tossed about in education for years. In 2000, the US Department of Education and the National Center for Education Statistics released a sourcebook entitled, The NPEC Sourcebook on Assessment, Volume 1: Definitions and Assessment Methods for Critical Thinking, Problem Solving, and Writing. This report stresses the importance of critical thinking and lists seven major categories across which critical thinking is defined. These are: interpretation, analysis, evaluation, inference, presenting arguments, reflection and dispositions.[3] These categories were adopted from studies by Jones et al. (1995, 1997). "Dispositions" refers to the individual's own disposition to think critically. Jones et al. (1995) write, "critical thinking is generally thought to consist of two main general components, a disposition to think critically and a cognitive component"(p.24)[4]. What this means is that to truly be a critical thinker, you must have a critical disposition. You must be willing to question what you see and hear, and you must be eager to seek out conflicting and controversial materials in order to process them cognitively yourself. This is precisely what the new prohibition of knowledge seeks to stop you from doing.
By claiming falsely that reviewing materials, for example, about creationism, makes one necessarily a creationist, or reviewing materials about jihad makes one a jihadist, or that reviewing materials about anarchism makes one necessarily an anarchist, and, further, that reviewing anything or even claiming these titles is the same as actually committing any crime, the surveillance state is effectively abolishing your right to be a critical thinker.
The Internet has in many ways democratized information and enabled even those outside of higher education to be citizen-scholars and researchers. The foundation of scholarship is access to information and critical thinking. Critical thinking requires both a disposition to question and the cognitive ability to process, compare, and reflect upon diverse and often conflicting types of content. Thoughtcrime, operationalized by digital surveillance, exercises prior restraint on the very foundation of scholarship - wide and uncensored inquiry.
1. Enemies of the State: What Happens When Telling the Truth about Secret US Government Power Becomes a Crime, Blowing the Whistle on Spying, Lying & Illegalities in the Digital Era. Panel presented at 29C3 (29th Chaos Communication Congress), 27 December 2012. Speakers are Jesselyn Radack, Thomas Drake, and William Binney.
2. Woolf, V. (1989). A Room of One's Own: Houghton Mifflin Harcourt. pp.7-8
3. US Department of Education, National Center for Education Statistics. The NPEC Sourcebook on Assessment, Volume 1: Definitions and Assessment Methods for Critical Thinking, Problem Solving, and Writing, NCES 2000--172, page 11. prepared by T. Dary Erwin for the Council of the National Postsecondary Education Cooperative Student Outcomes Pilot Working Group: Cognitive and Intellectual Development. Washington, DC: US Government Printing Office, 2000.
4. Jones, E. A., & et al. (1995). National Assessment of College Student Learning: Identifying College Graduates' Essential Skills in Writing, Speech and Listening, and Critical Thinking. Final Project Report: US Government Printing Office, Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328. p.24. Copyright, Truthout. May not be reprinted without permission.
R. Lila Steinberg
R. Lila Steinberg is a PhD student at UCLA. Her research centers on political language and democratic practices. Related StoriesBeset by Online Surveillance and Content Filtering, Netizens Fight OnBy Staff, Reporters Without Borders | News Analysis Show Comments
The Premise of Digital Surveillance Precludes Scholarship
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As The Supreme Court Hears Arguments On Obamacare, Polling Still Shows It Is Unpopular
By Susan DuclosAs opponents and proponents of the Affordable Care Act, more widely known as Obamacare, line up outside, the Supreme Court starts hearing arguments on Obamacare today and will continue to hear arguments until Wednesday.The Court will be listening to arguments on four specific issues:First is the "Anti-Injunction Act of 1867", where the Obama administration will argue that a tax cannot be challenged until someone has actually had to pay it.This was the issue focused on in day one.The transcript of oral argument is here. The audio is here.Second is the "The Individual Mandate" where opponents of the law assert it is unconstitutional because the U.S. government cannot force Americans to buy a specific product.Third is "Severability" where the Court is being asked to determine whether the individual mandate is severable, meaning if the mandate is struck down, does that automatically strike down the law in it's entirety.Note- The severability clause was in the Obamacare bill originally and Democrats removed it before passage. This was noted by U.S. District Court Judge Roger Vinson, who back in February 2011, ruled against the individual mandate stating that because there was no severability clause "the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit<' and therefore the entire law "must be declared void."In that ruling Vinson noted that a severability clause was included "in an earlier version of the act" and was removed from "the bill that subsequently became law." Vinson continued by noting the removal of the severability clause "can be viewed as strong evidence that Congress recognized the act could not operate as intended without the individual mandate."Fourth issue the Court will be hearing arguments on is Medicaid Expansion.There are number of views of what the Court will or will not do, but those are guesses at best and until the final decision is rendered sometime in June or early July, the public will not know if the law will stand or be struck down in it's entirety or whether only certain parts of the law will be nullified as unconstitutional.(Scotus Blog has provided a health care resource page, including briefs and documents, argument previews and other archived coverage, found HERE.)Since Obamacare's passage two years ago, public polling before it was passed and up until the latest polls published today, have shown the law, on the whole, is widely unpopular with majorities (72 percent) believing the individual mandate part of the law is unconstitutional. That belief crosses party and among those that think the healthcare law was a good thing, 54 percent believe the individual mandate is unconstitutional.Half of likely voters want the Supreme Court to overturn President Obama’s healthcare law, according to The Hill’s latest poll.A majority of both men and women want the law voided. By a 52-percent-to-39-percent margin women are more opposed to it than men, who oppose it 48 percent to 45 percent, a difference that matches the poll’s 3-point margin of error.Gallup and The Hill are not the only two that has found this pattern in polling as the new Reason-Rupe poll also shows 62 percent of Americans believe it is unconstitutional for Congress to mandate the purchase of health insurance, while 30 percent think requiring health insurance is constitutional.Legal experts have suggested that if Congress has the power to require individuals to buy health care insurance, it may also mandate that Americans buy broccoli. The Reason-Rupe poll finds 87 percent of Americans believe Congress does not have the power to require the purchase of broccoli, while 8 percent say Congress can force you to buy vegetables.Reason-Rupe finds 54 percent of Americans think the health care law will result in the rationing of health care services. Half of Americans have an unfavorable view of the health care law, while 32 percent have a favorable view of it. Similarly, 49 percent say the law should be repealed and 36 percent would let it stand.When it comes to addressing their health care needs, just 23 percent of Americans trust the government. That’s less than half of the 50 percent who say they trust health insurance companies and considerably lower than the 84 percent who trust their doctors.Two years later, public perception has not changed, yet Obama officials claim that "eventually" Obamacare will become widely popular, which is the same argument that Democrats and Barack Obama made when they passed the bill two years ago against the opposition of the majority of Americans and with absolutely no support from Republicans who, at that time, did not control the House of Representatives, which allowed Nancy Pelosi to jam the bill through, Harry Reid to pass it in the Senate and Obama to sign it into law.The Supreme Court Court will release audio files and written transcripts shortly after the arguments end each day, which will be available on the Court's web site.C-SPAN will be broadcasting those tapes on television and through its web site. You can access its page dedicated to the ACA arguments HERE.As an amusing side show and in an attempt to change the perception of the term "Obamacare", Democrats and Obama's reelection team now claim that they are in favor of the term Obamacare, as evidenced by an email sent out by Stephanie Cutter, deputy campaign manager for Obama for America, where she stated "They even assigned the law a moniker that they intended to be a dirty word: Obamacare. Well, we just so happen to love the name. Thanks, guys."This is a complete turnaround from the last two years where Democrats have referred to the term as "disparaging" in an attempt to ban the use of the word on the floor of the House as well as a failed attempt to stop Republicans from using the term Obamacare in their mass mailings..
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Home Debates 2012 May 15th
Debates of May 15th, 2012
House of Commons Hansard #124 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.)
The word of the day was chair.
Question PeriodCanada-Colombia Free Trade AgreementPetitionsQuestions on the Order PaperQuestions Passed as Orders for ReturnsCopyright Modernization ActBlood SupplyThe EconomyIntelligent Community of the YearChildren's Mental HealthRoadside CleanupUltimate Class Field TripTradeBenjamin Alan RussellIranSagkeeng's FinestAutomotive IndustryRight to FoodMaternal and Child HealthPalliative CareBudget Implementation LegislationEmploymentNew Democratic Party of CanadaPensionsEmploymentThe BudgetNational DefencePensionsThe EnvironmentNational DefenceAfghanistanEmployment InsuranceVeterans AffairsCanadian HeritageJusticeAgriculture and Agri-FoodHousingFisheries and OceansAboriginal AffairsPost-Secondary EducationPublic SafetyAboriginal AffairsNatural ResourcesAir TransportationHousingCopyright Modernization ActAct to Authorize Industrial Alliance Pacific Insurance and Financial Services Inc. to Continue as a Body CorporateCopyright Modernization ActBusiness of SupplyCopyright Modernization ActCitizenship and ImmigrationNatural ResourcesTransportBusiness of Supply
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Report StageCopyright Modernization ActGovernment Orders
Saanich—Gulf Islands, BC
Madam Speaker, I thank my hon. friend for his speech and his defence of the bill. I think that it needs to be understood that this copyright modernization act has moved in the right direction in most ways. Unfortunately, the balance is not right in relation to consumer rights and those of device manufacturers and copyright holders.
I want to return to a passage I put earlier to the member for Winnipeg North and put it to the member opposite. In relation to copyright law, let me mention that I have permission to read from Intellectual Property Law: Copyright, Patents, Trade-Marks text, second edition, published in 2011, by David Vaver. Allow me to continue with this real-life example of how this legislation would put consumers at risk of breaking the law. Here is a real-life example that I am quoting from this text:
Buyers of video game consoles found they were tied in to the console makers' games. TPMs —that is, digital locks—
barred third-party games, improvements, and imports. Users found themselves unable to exercise fair dealing and other rights the Copyright Act gave them. The consumer was often given no prior warning that rights he thought he had were being negated. The situation was ripe for hackers for surmount such obstacles, and cat-and-mouse games ensued as copyright holders tried to keep one step ahead of circumventers. The public sided largely with the circumventers, who enabled buyers to enjoy the usual rights of ownership of property that had been bought and paid for. I am looking to the Conservative members of the House. We were not all members in this House, in this place or in committee. I do understand committee has rejected a number of the amendments or ones like it, but, please, let us fix this now.
Mark Adler
York Centre, ON
Madam Speaker, I assume there is a question in there.
However, I was recently in Washington, meeting with a number of congressional leaders. We were talking about this very piece of legislation, the copyright modernization act. They were very pleased to learn that we are now bringing our copyright and intellectual property regime into the 21st century. They were quite concerned about the older regime that we were existing under.
By improving our intellectual property regime, we would be creating an opportunity to create more jobs in Canada, create investment and long-term prosperity for companies that would like to invest in this country, and create jobs for Canadians, so it is imperative that we pass the bill as expeditiously as possible.
Anne Minh-Thu Quach
Beauharnois—Salaberry, QC
Madam Speaker, it is completely irresponsible to limit debate today for the 21st time in a little over a year, especially since this debate will not strike a balance between authors' rights, the industry's rights and consumers' rights.
Howard Knopf, a lawyer who specializes in copyright, says that this bill does not encourage innovation and that, in fact, it inhibits it. He wonders how making it illegal to bypass a regional code in order to watch a legally imported Bollywood DVD that is not available in Canada is going to encourage innovation. Thus, there is no consensus and no respect for authors' rights or consumers' rights, and furthermore, the bill does not encourage innovation. How can this government move forward on the bill at this stage and limit debate when the bill still contains several controversial elements? Permalink
Madam Speaker, I am really not surprised to hear from the NDP that anyone's creation should not have any property rights attached to it.
The creator has, by creating a piece of property, a legal and moral obligation to receive compensation for it. It is not a Wild West situation in which anything in the public domain belongs to everybody. That is just not true, and creators of intellectual property deserve the full protection of the law.
We are now in the 21st century, and there are new opportunities and new technology. They must be protected, and the creators of these must be protected.
May 15th, 2012 / 11:50 a.m.
Marie-Claude Morin
Saint-Hyacinthe—Bagot, QC
Madam Speaker, as I said in my previous speech—and it bears repeating—shutting down debate is becoming a tradition. This is the 21st time this year. I do not know what more to say, but I thought it was worth pointing out.
First of all, this bill is exactly the same as Bill C-32 from the previous Parliament. Artists were very critical of it. Now that the Conservatives have a majority, they are bringing it back. This is another perfect example of them shutting down debate. This bill creates powerful new anti-circumvention rights for content owners, who are not necessarily the creators or developers of the content. This prevents access to copyrighted works. These new provisions are backed by fines in excess of $1 million and up to five years in prison.
An hon. member
Yes, my colleague is absolutely right.
This means that digital locks, for example, will, for all practical purposes, take precedence over all other rights, including fair dealing rights for students and journalists. People are being muzzled yet again. This is really becoming a tradition with this Parliament, and it is problematic for a number of reasons. Obviously, there is the very real possibility that consumers will not be authorized to use content they have already paid for. This government claims that it stands up for consumers' rights, so I find this whole thing a little paradoxical and contradictory.
Digital locks take precedence over all other rights guaranteed by the Charter. Take, for example, format shifting for individuals with vision or hearing loss. These people might not be able to exercise their rights. That is discrimination. I do not think that is news to anyone here.
Furthermore, where a digital lock has been used, copies made for educational purposes must be automatically erased after five days and course notes must be destroyed within 30 days of the course concluding. That would lead to serious problems for students enrolled in distance education courses. In my opinion, it is not an appropriate use of the copyright rules. A student who pays copyright fees for course materials often needs the materials even after the courses end. This is completely unacceptable.
The bill also creates new limited exceptions to the fair dealing provision of the Copyright Act, including the exceptions for educators, and exceptions for parody and satire, which once again limit freedom of expression. The exceptions do not adequately recognize the rights of creators. In fact, the exceptions facilitate consumers' access to copyright-protected content without providing new methods to compensate creators for their work.
It is also interesting to note that, in this bill, the Conservatives have deliberately avoided addressing the issue of a possible extension of the private copying exception. It has been proven that this exception has been very effective in the past for cassettes, CDs and DVDs. However, the Conservatives do not want to apply it to new technology. Instead, the Conservatives have tried to put a populist face on all this by scaring consumers. I find this quite unacceptable.
Clearly, the NDP is in favour of modernizing the copyright rules. It is something that needs to be done, but there are too many major problems with this bill. In some cases, it even creates problems where there were none before. In my opinion this is not an approach that balances the rights of creators, who obviously must be paid for their work— their job is to create—and the right of consumers to have reasonable access to content.
It is therefore our duty to vote against this bill, which contains far too many provisions that will have very serious consequences for the way in which Canadians obtain and share protected content.
The bill includes provisions that create powerful new anti-circumvention rights for content owners, which have absolutely nothing to do with the creators and content developers and prevent access to copyrighted works. These new provisions are supported by fines of $1 million. I think it is important to point this out because I do not understand how the average consumer could be fined such a large amount. It is completely inappropriate and unacceptable.
This measure is modelled directly after the United States' controversial Digital Millennium Copyright Act. Digital locks would trump all other rights. I really do not see how this is useful for the consumers that the Conservatives claim to want to protect.
There are two fundamental problems with this approach. First, there is a real danger that it will prevent consumers from using content for which they have already paid, which is ironic given that the Conservatives claim to be working for consumers. The approach also seriously infringes on the rights of artists and creators.
The work of artists and creators is very important in our society. Indeed, it is very important for a society to have a lively arts and culture sector in order to reflect that culture on the world stage. These creators may no longer have the means to continue creating and will be forced to do other work. This is not going to benefit our country in the end.
We know that the government is accusing us of voting against a number of its bills, but we cannot not vote against this type of bill, which is harmful to consumers and artists alike.
The NDP has fought every step of the way for a balanced approach to copyright. We participated in the committee, even without support from some of the opposition members, that studied this bill. We listened to the concerns of a number of groups with regard to the scope of this bill. At committee stage, we proposed 17 amendments that could have made this bill more balanced and fair for the artists and consumers. Nonetheless, the government did not listen to us or the many groups of artists and writers who came before the committee.
That is why it is impossible for us to support this bill, which penalizes Canadian families and artists.
I would be pleased to answer my colleagues' questions.
Madam Speaker, I thank the hon. member for her excellent speech.
I think we all agree that Canada's copyright legislation needs to be updated. However, we also need to protect consumers' rights. So many amendments are needed because the technical protection measures are too strict. I hope the NDP will support those amendments during this evening's vote.
I would like to know the member's thoughts on eliminating technical protection measures that are too strict, in order to allow consumers to legally use copyrighted material they have legally purchased.
Madam Speaker, I thank my hon. colleague for the question. Indeed, what is really important to remember about this bill is that the NDP is proposing a balanced approach that does not discriminate against consumers and allows artists and creators to be properly paid for the work they do for our society.
Many organizations agree with our position. For instance, Michael Geist, a technology commentator, supports our position, and so does the Writers Guild of Canada, the Canadian Internet Policy and Public Interest Clinic, the Society of Composers, Authors and Music Publishers of Canada, copyright lawyer Howard Knopf, the Society for Reproduction Rights of Authors, Composers and Publishers in Canada, and I could go on. All of these people and organizations share the NDP's position and have made their position clear to this government, but it refuses to listen. Permalink
Sadia Groguhé
Madam Speaker, I would like to thank the hon. member for her remarks. She talked about how this bill creates an imbalance between consumers and authors.
What does she think about the fact that this bill does not focus on innovation sufficiently, if at all? Permalink
Madam Speaker, as I said at the beginning of my speech, this bill is more or less a carbon copy of Bill C-32, which was rejected by many artists' groups and by the opposition.
Now that the Conservatives have a majority, they are marching in, imposing this unacceptable bill on us once again. As the hon. member said, there is a lack of innovation. In addition, there is no openness on the part of the government, which does not listen to artists, writers, musicians and all those whose work reflects our Canadian culture and identity. The government's lack of vision in modernizing copyright is a real problem.
B.C.Conservative
Parliamentary Secretary to the President of the Treasury Board and for Western Economic Diversification
Madam Speaker, I am honoured to speak today in support of Bill C-11, the copyright modernization act. As many of my colleagues know, we are the closest we have ever been in the last 15 years to modernizing the Copyright Act. We are on the verge of having a Copyright Act that is responsive to the realities of both today and tomorrow, a Copyright Act that will give creators, innovators and ordinary citizens the confidence they need to take advantage of the opportunities of the digital world.
The fact is the Copyright Act in its current form is not responsive to many of the realities our digital world has brought forward. Our government is committed to fixing this.
The last time the Copyright Act was substantially updated, VHS tapes, discmans and pagers were commonly used. For many, the flip phone was the trendy gadget of the day. Text messaging and mobile Internet were just beginning to be introduced on the market. In fact, dial-up modems were still quite common. That was only 15 years ago.
It would be a gross understatement to say that technology changed considerably since then. What was once considered cutting edge is now almost obsolete. In fact, it seems like something newer and better is popping up every day.
Just the other day I was reading about all the speculation around what consumers could expect from upcoming versions of Smartphones. It is hard to predict what the high tech world will look like even 10 years from now. Digital technology has changed how Canadians access, use and share copyrighted content. Today, Canadians expect to be able to enjoy legitimately-acquired content where and when they want. Copyright laws need to respond to this reality.
Our government is committed to ensuring that Canada's copyright law is flexible and adaptable to change. We are also committed to ensuring that appropriate protections are provided for both creators and users. Bill C-11 would establish clear rules that would be flexible enough to allow the Copyright Act to evolve as technology continues to advance. It is balanced in that it provides new rights for creators, while providing new exceptions for users.
Let me tell members about some of the exceptions in Bill C-11. Bill C-11 would give Canadians the flexibility to record broadcast programming to enjoy at a more convenient time, often referred to as time shifting. It would also give individuals the freedom to copy music, films and other content onto any or all of the devices they owned, such as MP3 players and tablets, something that is often referred to as format shifting. Canadians would also be able to legally back up copyrighted material they purchased. Our government believes it is important that all Canadians, including those with disabilities, have access to copyrighted materials in a format they can easily use. That is why Bill C-11 would allow Canadians with perceptual disabilities to adapt legally-acquired material to a format that would be more accessible. It would also clarify the law regarding the importation of adapted material into Canada and explicitly would allow the exportation of certain adapted materials, including Braille and audio books.
As I mentioned, digital technology has fundamentally transformed the way many Canadians work, play and learn. For example, in the digital world, consumers are no longer passive audiences. Large segments of the population are interacting with content in new and innovative ways. Bill C-11 recognizes this new reality by including new exceptions that respond to it.
Bill C-11 includes a user-generated content provision which would allow Canadians to incorporate existing copyrighted material in the creation of new non-commercial works. An example of this would be posting a home video on YouTube of a bride and groom dancing to their favourite wedding song. This exception recognizes that these new uses of creative content contribute to Canada's cultural sector. For example, these uses can enhance interest in the original when videos of user-generated content go viral on the Internet. This innovative form of creation can also shed light on emerging talent from across our country and showcase it to the rest of the world. Of course the digital age does not just offer opportunities for creation; it also offers many unique opportunities for learning and education.
Bill C-11 recognizes the immense opportunities that new and emerging technologies present for education. Digital technologies can enhance the traditional classroom experience and encourage new models for education outside the physical classroom. This can increase access to education and communities big and small across our great country.
Bill C-11 includes exceptions that would allow teachers and students to make better use of digital technologies and of copyrighted materials. For example, Bill C-11 would amend existing educational exceptions so that they are technologically neutral. No longer would we see references to specific technologies like flip charts and overhead projectors.
Bill C-11 also introduces a number of new measures that would enrich the educational experience. For instance, teachers would now be allowed to digitally deliver course materials to students. Students would be allowed to use material that they find on the Internet. There are a number of other educational exceptions in Bill C-11 that I could describe, but all of these recognize the potential that the digital environment holds for teaching and learning in Canada.
I have spoken about how Bill C-11 recognizes the opportunities that the digital environment offers for learning and creation in Canada. It is also important to note that Bill C-11 recognizes the potential this environment holds for creative and innovative businesses.
Bill C-11 includes a number of provisions that would strengthen the ability of copyright owners to control the online use of their works. This would help promote innovative and legitimate business models and prevent widespread illicit use.
For example, Bill C-11 includes new protections for copyright owners who choose to use digital locks to protect their works. For a number of copyright owners, the use of digital locks can allow for the monetization of creative content and the protection of potentially significant investments made during the development phase. By providing protections against the circumvention of these locks, our government is supporting the ability of creators to advance new digital business models and compete on the international stage.
Bill C-11 also includes a number of provisions that would allow creators and innovators to compete in the digital age with confidence. This includes legal protections for rights management information and a new category of civil liability that targets those who enable online piracy.
All of these measures would help attract new investments which would, in turn, promote economic growth and help protect and create jobs in Canada. In short, they would help position Canada as a leader in the digital economy of today and tomorrow.
It is clear that Canada's copyright laws need to be modernized to respond to the challenges and opportunities of the digital age. The bill we have before us would do just that. Bill C-11 takes a balanced approach to copyright modernization. It considers the needs and interests of all Canada. Furthermore, it would bring our copyright law in line with international standards. It is very much in keeping with our government's commitment to promote innovation, productivity and job creation. Of course, we cannot enjoy any of these benefits until we pass the bill. Therefore, I urge all of my colleagues to join me in giving these benefits to Canadians by passing Bill C-11. Permalink
Robert Chisholm
Dartmouth—Cole Harbour, NS
Madam Speaker, I listened with interest to the member opposite and I wonder if he recognizes that this is a very complicated area and a very complicated piece of legislation.
The proposed legislation has not received unanimous support from participants within the industry. The impact of the changes that are being proposed would be significant and difficult to change. It would bring forward some very onerous restrictions on users, artists and others and could, frankly, take away millions of dollars from the creators.
Would the member not agree that the matter being proposed is of such importance that it requires we take every opportunity to examine each and every piece and listen to any Canadian, especially those involved in the industry, to ensure we are doing this correctly the first time?
Madam Speaker, yes, the government does recognize that this is a very complex and complicated matter. It is for that reason that we are continuing our review of the copyright modernization act, which actually began in the last Parliament. Before being dissolved, the legislative committee studying the bill heard from more than 70 witnesses and received more than 150 written submissions. Over the course of the hearings there were two clear messages that emerged. First, that the bill balances the interests of the various stakeholders, and second, that Canada urgently needs to pass legislation to update the Copyright Act.
By re-introducing this bill without changes, the government is reiterating its support for a balanced approach to copyright reform and enabling parliamentarians to pick up where the last committee left off.
Megan Leslie
Madam Speaker, I would like to pick up where my colleague from Dartmouth—Cole Harbour left off. When I was listening to the parliamentary secretary's speech, I kept hearing this phrase over and over again, “creates new...”. He said that the bill creates new rules about this and new rules about that. He said “creates new” quite a number of times, although I did not actually keep track. My colleague from Dartmouth—Cole Harbour raised an excellent point when he said that there was a lot happening with this bill. It would create new powers, new rules and new regulations. It essentially would create a new way of doing business. Therefore, I do not know how the parliamentary secretary can stand up and justify, with any credibility in the House, why it is that there has been time allocation moved on this and why it is we are not doing a proper and thorough study of this review. I would like him to comment on the fact that the very words in his speech contradict the position that his government is taking.
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Golden Anniversary: The Supreme Court’s Engel Decision Protected Religious Liberty In Public Schools
Jun 22, 2012 by Rob Boston in Wall of Separation The Supreme Court did not rule in 1962, and has never ruled subsequently, that kids can’t pray in public schools.
An important anniversary will be observed on Monday, one that will probably be overlooked but shouldn’t be.On June 25, 1962, the U.S. Supreme Court handed down a crucial church-state ruling in Engel v. Vitale. Although the high court had dealt with other religion-in-public-school controversies, Engel was the first case to deal with official school prayer.I recently had occasion to do some research about the Engel case while writing about the anniversary for Church & State. I talked with Bruce J. Dierenfield, a history professor at Canisius College in Buffalo and author of the 2007 book The Battle Over School Prayer: How Engel v. Vitale Changed America. Dierenfield put me in touch with two women – Naomi Lichtenstein and Jeanne Lyons – whose parents were plaintiffs in the lawsuit. It was fascinating to talk with them and hear their recollections of this important case.A couple of things struck me. One, how nasty and mean-spirited some people can be. The five families involved in this case were all threatened and harassed. This sort of thing continues today. Consider the case of Jessica Ahlquist, who challenged a prayer banner hanging in a Rhode Island public school. I shudder when I read about what she went through.Two, how useless the prayer in question was. The invocation that was struck down in Engel had been drafted by the New York State Board of Regents. (Imagine that – a prayer written by government officials!) It was pabulum. In fact, during the controversy many religious people pointed that out.The Engel ruling has been abused, assailed and lied about for half a century now. It’s still going on. So let’s set the record straight about a few things.First, the Supreme Court did not rule in Engel, and has never ruled subsequently, that kids can’t pray in public schools. The court declared that government officials have no business writing prayers and compelling youngsters to say them. Students are free to pray on their own, in a non-disruptive manner, as long as it doesn’t interfere with the rights of others.Second, the high court’s ruling did not demonstrate “hostility” toward religion. The decision protected religious freedom by upholding the individual right of conscience. It also protected parental rights. Parents, not government bureaucrats, get to decide what prayer, if any, children say.Third, the loss of official school prayer actually helped religion. As mentioned earlier, theologically speaking the prayer was thin gruel. Allowing people to make their own decisions about when, how or whether to pray helps religion. Don’t believe me? Just look at Western Europe and Scandinavia, where hundreds of years of official worship and state-imposed faith has left religion in tatters.In public secondary schools all over America, students have the right to form religious clubs that are not officially school sponsored. These clubs are run by students, and no one has to be there. That’s where you’ll find real religion in public schools because when it comes to worship, Bible reading and prayer, coercion just doesn’t cut it. The voluntary principle isn’t just best, it’s essential.The Engel ruling laid down a powerful precedent that still reverberates today. One year later, the Supreme Court struck down mandatory Bible reading and recitation of the Lord’s Prayer in Abington Township School District v. Schempp. Subsequent decisions struck down creationism in science classes, school-sponsored prayers during graduation ceremonies and coercive prayer before school events like football games.Engle, in fact, established the framework for secular public schools that welcome students of all faiths as well as those who have no religion. These schools can teach about religion in an objective manner, but they’re out of the business of religious indoctrination. Thanks to Engel, our schools must stay focused on teaching, not preaching.That’s quite a legacy – and it all started with five brave families on Long Island. Unfortunately, all of the parent plaintiffs in the Engel case are dead now, but on Monday, take a minute to reflect on what they bequeathed us. It’s considerable. Tags: Engel v. Vitale, Naomi Lichtenstein, Jeanne Lyons, Bruce Dierenfield, School Prayer Issues: School Prayer, Legal Foundations of Church-State Separation Wall of Separation
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Save as PDF Add a Tag Add a Note Semantics Visualize Lasa DIn Vs. Mt. Gulab Kunwar and Others - Court Judgment LegalCrystal Citationlegalcrystal.com/946454CourtPrivy CouncilDecided OnJun-21-1932Case NumberPrivy Council Appeal No. 63 of 1931 (From Oudh: Oudh Appeal No. 18 of 1929) JudgeLORD THANKERTON, SIR JOHN WALLIS & SIR GEORGE LOWNDES. AppellantLasa DinRespondentMt. Gulab Kunwar and OthersAdvocates:J.M. Parikh, for Appellant ; Respondents, Ex parte. Solicitors for Appellant-T.L. Wilson and Co.; Respondents, Ex parte.Excerpt:limitation act ( 9 of 1908) - article 75 and article 132 - limitation - mortgage; (from oudh: air 1929 oudh 536.) cases referred: (1) air 1915 all 189=28 ic 910=37 all 400 (fb). (2) [1891] 2 qb 509=60 lj qb 619=65 lt 329=39 wr 626. (3) air 1923 all 1=69 ic 981=45 all 27. (4) air 1928 all 159=108 ic 152=50 all 328. (5) [1897] 24 cal 281=1 cwn 229. (6) [1907] 11 cwn 903. (7) air 1923 bom 201=72 ic 290. (8) [1916] 39 mad 981=35 ic 418. (9) air 1930 pat 615=128 ic 786=10 pat 173 (fb). (10) [1875] 1 cal 163=3 ia 1=3 sar 581 (pc). (11) air 1926 pc 85=99 ic 650=48 all 457=53 ia 187 (pc). comparative citation: 1932 air(pc) 207.....therefore from the provisions of a particular clause in the deed, to be presently referred to the mortgage money would have become due on 26th july 1918, and under art. 132. sch. 1, lim. act, 1908, the mortgagee would have a further 12 years in which to bring his suit. the article runs as follows. description of suit. period of limitation. time from which period begins to run. 132.-to enforce payment of money charged upon immovable property. twelve years ... where the money sued for becomes due. the appellant is the mortgagee. he brought a suit praying for a mortgage decree in the usual form on 28th february 1928, i.e., within 12 years from 26th july 1918. he joined as defendants the widow of the mortgagor, who was then dead, and certain puisne encumbrancers, who alone defended the..... Judgment:Sir George Lowndes: The only question in this appeal is as to the date upon which the principal money became due under a mortgage of certain immovable property in the Lucknow District. Upon this hangs an important question of limitation and the issue of the appeal. The mortgage is dated 26th July 1912, and purports to be for six years from that date. Apart therefore from the provisions of a particular clause in the deed, to be presently referred to the mortgage money would have become due on 26th July 1918, and under Art. 132. Sch. 1, Lim. Act, 1908, the mortgagee would have a further 12 years in which to bring his suit. The article runs as follows. Description of suit. Period of limitation. Time from which period begins to run. 132.-To enforce payment of money charged upon immovable property. Twelve years ... Where the money sued for becomes due. The appellant is the mortgagee. He brought a suit praying for a mortgage decree in the usual form on 28th February 1928, i.e., within 12 years from 26th July 1918. He joined as defendants the widow of the mortgagor, who was then dead, and certain puisne encumbrancers, who alone defended the suit. They are respondents to this appeal, but have not been represented before the Board. The main defence was limitation. The Subordinate Judge of Lucknow, in whose Court the suit was instituted, held that it was out of time, and this decision was affirmed on appeal, first by the District Judge and then by the Chief Court of Oudh. The appellant comes before the Board upon special leave. Other issues raised at the hearing of the suit in the Court of the Subordinate Judge have not been tried. By the mortgage deed the mortgagor covenanted to pay interest yearly at 12 per cent., and that if the interest for any year was not paid, it should be added to the principal and carry interest at the same rate. Then followed the clause upon which the defence was founded: "In case of default, the said creditor shall, at all times, within and after the expiry of the stipulated period of six years aforesaid, have the power to realize the entire mortgage money and the remaining interest and compound interest due to him, in a lump sum, through Court, by attachment and sale of the said mortgaged share as well as from my person and all other kind of my property, both moveable and immovable, together with costs of Court, and I my heirs, relations and representatives shall have no occasion for objection and refusal; that the aforesaid rate of interest, fixed by me, shall stand within and after the stipulated period and after the decree till payment of the entire demand here-under and that I shall at no time demand reduction in interest." The mortgagor defaulted in the payment of interest for the first year and it was contended for the defendants that immediately upon this default the principal moneys became due within the meaning of the article of the Limitation Act set out above, and consequently that the statutory period of 12 years had expired before the institution of the suit. The question their Lordships have to determine is whether this view, upon which the judgments under appeal are all based is correct. Clauses of this nature in mortgage deeds have been before the Indian Courts in many cases, and there has been a considerable divergence of judicial opinion as to their effect upon limitation. The Chief Court of Oudh, following a majority decision of the Allahabad Full Bench in 1915, had more than once held that in such cases time ran against the mortgagee from the date of the first default, and the judgments in the present case add little to the elucidation of this problem. The Subordinate Judge thought it clear that the clause gave the mortgagee an option either to sue at once or to wait till the expiry of the mortgage term, but he held himself concluded by authority on the question of limitation. The District Judge thought there was no option, and that the mortgagee "was bound to sue" immediately upon default. In the Chief Court, Srivastava, J., noted the conflict of authority, and certain observations of this Board in a recent case, which seemed to throw doubt upon the soundness of the Allahabad decision, but thought it his duty to adhere to the decisions of his own Court so long as they were not definitely overruled. Wazir Hasan, J., agreed, but expressed himself rather more confidently on the principle involved. In his opinion, the right of the mortgagee to enforce payment on default made the principal money immediately payable within the meaning of S. 60, T. P. Act, 1882, and therefore entitled the mortgagor to redeem regardless of the six years' term. The principal authority in favour of the view taken by the Chief Court is the Full Bench case already referred to, Gaya Din v. Jhumman Lal (1), in which the opinions of Richards, C. J., and Tudball, J., prevailed over that of Banerji, J. The gist of the majority judgments was that the money became "due" as soon as it could be legally demanded, i. e., upon the first default. The Chief Justice fortified himself by extracts from the judgments of the Court of appeal in this country in Reeves v. Butcher (2), which he seems to have regarded as decisive. Banerji, J., took the opposite view. He thought the clause in question was clearly inserted for the benefit of the creditor, and that it was at his option to treat the money as being immediately due or not. He referred to previous Allahabad decisions which seem to support his argument, and in particular to a dictum of this Board in a case decided under the Limitation Act 14 of 1859, which will be noted presently. Gaya Din's case (1)seems to have been doubted in subsequent cases in the Allahabad Court, but was affirmed by another Full Bench in 1922, Shib Dayal v. Meharban (3)The authority of these cases is, however in their Lordships' opinion, weakened by a more recent decision of the same High Court, Ashiq Husain v. Chatar Bhuj (4), in which Sir Grimwood Mears, C. J., and Sen, J., refused to extend the principle beyond the limits of the decided cases. Their Lordships think that if, under a clause of this nature, the principal money "becomes due" within the meaning of Art. 132 immediately upon default by the mortgagor in payment of interest or of an instalment, it must equally become due upon the breach of any other condition to which a similar provision is attached. Turning now to the other High Courts, their Lordships find a Calcutta decision of 1896, which adopts the same line of reasoning as Allahabad: Sitab Chand Nahar v. Hyder Malla (5). It has been suggested that the same Court ten years later in Rup Narain v. Gopi Nath (6), followed a different principle, which would favour the appellant, but this decision was given with reference to another article of the Limitation Act, and is. their Lordships think, of no assistance in the present case. Sitab Chand's case (5)was no doubt decided under Act 15 of 1877, but the wording of the article in that Act was the same as in the Act of 1908. No authority has been cited from Bombay. [There appears to have been a. case in Bombay, not in the authorized reports, in which the High Court followed Gaya Din's case (1), but the judgment adds nothing to the reasoning: see Shrinivas Laxman Naik v. Chanbasapagowda, All Ind Rep 1923, Bom (7)], but the High Court of Madras (Narna v. Ammani Amma) (8), following the judgment of Banerji, J., in the first of the Allahabad Full Bench cases, and the High Court of Patna (Ganga Bishun v. Lala Raghunath) (9), have taken the opposite view. Similar questions have been discussed on two occasions before this Board, but in neither case was it necessary to decide the point, though fairly definite indications were given in each of the views the Board was inclined to take. In Juneswar Dass v. Mahabeer Singh (10), a case falling under Act 14 of 1859, a similar argument was put forward for the appellant to that which has prevailed in the Oudh Courts and Allahabad, though it was based upon the application of a six years' period of limitation. The decision was against the appellant on the ground that the period was 12 years and not six. But Sir Montague Smith, who delivered the judgment of the Board, after expressing himself to this effect, continued: "Their Lordships must not be supposed, in coming to this decision, to give any countenance to the argument of Mr. Arathoon( Note.-A fuller report of the arguments appears in the Calcutta Report, ILR 1 Cal 163) [for the appellant] that this suit would have been barred if the limitation of six years under Cl. 16 had been applicable to it. They think upon the construction of this bond that there would be good reason for holding that the cause of action arose within six years before the commencement of the suit." It is, their Lordships think, worth noticing that this case was not referred to in Sitab Chand Nahar v. Hyder Malla (5). The dictum cited was, however much relied upon by Banerji, J., in his dissenting judgment in Gaya Din v. Jhumman Lal (1). The question came up for consideration again before the Board, half a century later: Panoham v. Ansar Husain (11). In this case the Allahabad High Court had, following the decision in Gaya Din's case (1), dismissed a mortgagees' suit as out of time, it not having been brought within 12 years of the mortgagor's default in payment of an instalment, which gave the mortgagees the right (as in the present case), without waiting for the expiry of the stipulated period, to enforce their security. The judgment of the Board was delivered by Lord Blanesburgh, and the material portion of it runs as follows: "Applying certain previous decisions of that Court, and in particular a Full Bench decision in Gaya Din v. Jhumman Lal (1), the High Court held that under a clause in the above form a single default on the part of the mortgagors, without any act of election, cancellation or other form of response or acceptance on the part of the mortgagees, and even, it would appear, against their desire, operates, to instanti, to make the money secured by the mortgage 'become due,' so that all right of action in respect of the security is finally barred 12 years later, that is in the present case, on 21st February 1906. All this the High Court held, notwithstanding that the mortgage is for a term certain a provision which may be as much for the benefit of the mortgagees as of the mortgagors, and notwithstanding that the proviso is exclusively for the benefit of the mortgagees. The decision also apparently proceeds upon the view that the words of the English Limitation Act and the English decisions thereon apply without question to the words of Art. 132 of the schedule to the Indian Act -a conclusion which as it seems to their Lordships may involve, and on the critical point when applied to such a proviso as the present, a large assumption. "Their Lordships are fully alive to the seriousness of the view so taken by the High Court emphasized and perhaps extended as it has been by a later Full Bench decision, to the same effect: see Shib Dayal v. Meharban (3). Moreover, upon the correctness of it there has been in different High Courts of India a sharp conflict of judicial opinion. It is accordingly manifestly desirable that so soon as may be this Board should finally pronounce not only upon the question whether the principle of the two Allahabad decisions above referred to is correct but also upon the further question whether, even if it is, these decisions have any application to a proviso framed as is that now in salt. Their Lordships would be reluctant however to pronounce on either question in the absence of full argument and it is accordingly a satisfaction to them to find that the present case in which they bad no assistance from the respondents can, as they think regardless of the general question, be decided on its own special circumstances which apparently the High Court was not concerned to note." The judgment then proceeds to deal with the "special circumstances" upon which the actual decision turned; they have no relevance to the present case. It is no doubt true that the question before the Board was advisedly left open for future discussion but the considerations referred to by Lord Blanesburgh are of great weight and it is difficult to find an answer to them. They clearly affected the decision in the latest Allahabad case but though the judgment in Pancham's case (10)was cited in the Chief Court of Oudh the learned Judges of that Court would make no further attempt at the solution of the problem. Under these circumstances it is a matter of great regret to their Lordships that they should now have to pronounce upon these important and difficult questions without the assistance of counsel for the respondents. But the case has been placed before them very fully and with conspicuous fairness by Mr. Parikh, who appeared for the appellant and they have given their most anxious consideration to all the judgments which have been referred to. Their Lordships think that no valid distinction can be drawn between the material provisions of the deed in the present case and those upon which the judgments in the Allahabad cases were founded and that the question to be decided is one of principle. There can be no doubt that as pointed out by Lord Blanesburgh a proviso of this nature is inserted in a mortgage deed "exclusively for the benefit of the mortgagees," and that it purports to give them an option either to enforce their security at once, or, if the security is ample to stand by their investment for the full term of the mortgage. If on the default of the mortgagor-in other words, by the breach of his contract- the mortgage money becomes immediately "due" it is clear that the intention of the parties is defeated and that what was agreed to by them as an option in the mortgagees is in effect converted into an option in the mortgagor. For if the latter after the deed has been duly executed and registered finds that he can make ft better bargain elsewhere, he has only to break his contract by refusing to pay the interest and "so instanti," as Lord Blanesburgh says, he is entitled to redeem. If the principle money is "due" and the stipulated term has gone out of the contract it follows in their Lordships' opinion that the mortgagor can claim to repay it, as was recognized by Wazir Hasan, J., in his judgment in the Chief Court. Their Lordships think that this is an impossible result. They are not prepared to hold that the mortgagor could in this way take advantage of his own default: they do not think that upon such default he would have the right to redeem and in their opinion the mortgage money does not "become due" within the meaning of Art. 132, Lim. Act, until both the mortgagor's right to redeem and the mortgagee's right to enforce his security have accrued. This would of course, also be the position if the mortgagee exercised the option reserved to him. Their Lordships are not greatly oppressed by the authority of Reeves v. Butcher (2). It is they think, always dangerous to apply English decisions to the construction of an Indian Act. The clause there under consideration differed widely from that now before their Lordships, and indeed from the clauses with which the Allahabad Court had to deal the question for decision would have fallen in India not under Art. 133, but under Art. 75, which is in very special terms: and S. 3 of the statute of James, with which the Court was concerned made the time to run not from the date when the money became due, but from the date when the cause of action arose. If in the Indian cases the question were: When did the mortgagee's cause of action arise?"-i. e., when did he first become entitled to sue for the relief claimed by his suit -their Lordships think that there might be much to be said in support of the Allahabad decisions. Judged by the Indian criterion, "when the money sued for became due," upon the best consideration their Lordships have been able to give to this difficult question they think that the decision of the Chief Court of Oudh was wrong and that they should have held that the appellant's suit was within time. For these reasons their Lordships will humbly advise His Majesty that this appeal should be allowed that the decrees of all the Oudh Courts should be set aside and that the suit should be remitted to the Court of the Subordinate Judge for trial of the other issues which have not been decided. Respondents 2-6 must pay the costs of the appellant in both the District Court and the Chief Court and before this Board. All other costs of the suit will be dealt with upon the further trial. Appeal allowed. Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files // Start your Free Trial Today! Contact Us
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Hechos Probados....How The Bombs Were Planted
On March 11th 2004 three unidentified members of the terrorist cell travelled to the town of Alcalá de Henares in a white Renault Kangoo van, carrying various sports bags or rucksacks containing explosive devices. The van belonged to José Garzón Gómez, and had been stolen by unknown persons at some point between 13:00 on the 27th February 2004, and 01:00 on the following day from where it was parked at number 15 Calle Aranjuez in Madrid.Shortly before 7:00 a.m. on the day of the bombings, the occupants of this vehicle parked it in the Calle del Infantado, a street close to the railway station. They were seen here by the caretaker of a nearby building. On leaving the vehicle, they made their way towards the station and placed an unknown number of bags containing explosive devices in various trains heading towards Madrid. At the same time other members of the group did the same, boarding the trains in unidentified stations on the route between Alcalá and Atocha station in Madrid.One member of the group, who has not been identified beyond all doubt, was seen at approximately 7:45 a.m. changing his clothes between two huts on a building site located on the Gran Via del Este opposite the railway station of Vicálvaro. In this place abandoned clothes were found. Genetic profiles detected on these clothes included that of the accused Otman el Gnaoui.Footnote: The Kangoo van has of course been one of the main targets for the conspiracy theorists because it was the first significant piece of evidence pointing towards Islamist responsibility for the bombings. The court has accepted it as valid evidence for the transport of some of the bombers and the devices they planted. However, this is all we know about the planting of the bombs. There were thirteen devices in total so it is reasonable to assume that other vehicles were involved as well as more than three people. This vehicle was left in Alcalá, it is not known how those planting the bombs managed to return to their homes or hiding places
Hechos Probados,
Hechos Probados....The Leganés Siege
Hechos Probados....The AVE Bomb
Hechos Probados....Hamid Ahmidam
Hechos Probados....The House In Morata
Hechos Probados....The Theft Of The Dynamite
Hechos Probados....The Dynamite Trail
Hechos Probados....The Telephones And The Cards
Hechos Probados....The Vallecas Bomb
Hechos Probados....The Discovery Of The Renault Ka...
Saved By The Supreme Court
The Victims Also Appeal
The Prosecution Appeals
Hechos Probados....The Bombs On The Trains
The Map Of The Madrid Train Bombings
Los Hechos Probados....The Members Of The Cell
Los Hechos Probados
The Conspiracy Theorists May Get Their Day In Cour...
On Hunger Strike Against The Sentence
The Sentences
The Trial....The Verdict Is Announced
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EUROPAEU law and publicationsEUR-LexEUR-Lex - l26026a - EN
Patent law in the field of biotechnology and genetic engineering: implementation report (2002)
This document is the Commission's first annual report aimed at evaluating the implementation of Directive 98/44/EC on the legal protection of biotechnological inventions. It examines the development of patent law in the field of biotechnology and genetic engineering, and identifies and evaluates problems and sensitive issues that have recently arisen.
Commission Report of 7 October 2002, Development and implications of patent law in the field of biotechnology and genetic engineering COM(2002) 545 final [Not published in the Official Journal].
Background and general objective
The biotechnology sector was identified by the Stockholm European Council in March 2001 as one of the most promising in terms of economic development and employment. There has, in fact, been a real boom in biotechnological inventions with the discovery of very encouraging new techniques for therapeutical applications and food production. In this context, the European legislator felt it necessary to keep pace with these developments by establishing a secure legal framework allowing European companies to develop and market the new products and processes arising from genetic engineering. This is the context in which to place Directive 98/44/EC on the legal protection of biotechnological inventions, which was adopted after almost ten years of discussions within the Council of Ministers and the European Parliament.
Provision is made for this report in Directive 98/44/EC which stipulates that the Commission should send the European Parliament and the Council an annual report on the development and implications of patent law in the field of biotechnology and genetic engineering. This report also forms part of the follow-up to the Commission Communication of 23 January 2002 entitled "Life sciences and biotechnology - A Strategy for Europe"[PDF], which aims to promote biotechnology within a flexible regulatory framework and to ensure consistency across the different policies and sectors involved in this field.
The report examines the core provisions of Directive 98/44/EC with the aim of determining whether the patent system is effective in meeting the needs of researchers and businesses.
The current situation in Europe
At the time of drafting this report, only six Member States had transposed Directive 98/44/EC into their national legal systems: Denmark, Finland, Ireland, the United Kingdom, Greece and Spain. This transposal is, however, essential in order to avoid any discrepancies between the different national legislations, especially since if such a situation were to continue, the development of biotechnology in Europe might slow down considerably.
The main provisions of Directive 98/44/EC have been incorporated into the Implementing Regulations to the European Patent Convention by a Decision of the Administrative Council of the European Patent Organisation. This incorporation of Community law by the Organisation is particularly important. The European Patent Convention lays down a single procedure for examining applications for patents, which makes it possible to have a whole range of national patents governed by national and Community law.
In 1998, the Netherlands, with the support of Italy and Norway, brought an action for annulment of Directive 98/44/EC before the Court of Justice of the European Communities. The application by the Netherlands put forward six pleas, relating in particular to the incorrect legal basis chosen for the Directive, the breach of the principles of subsidiarity and legal certainty, and the breach of obligations in international law. In October 2001, the judgment of the Court dismissed the action.
The compatibility of the Directive with relevant international agreements in this field
The Directive is compatible with existing international Treaties in the field of biotechnology. Nonetheless, the work being carried out at international level within WIPO (the World Intellectual Property Organisation) on the draft SPLT (Substantive Patent Law Treaty) is particularly likely to have an impact on Directive 98/44/EC. The new draft treaty is intended to establish, at international level, binding provisions applicable to substantive patent law. At the current stage in the negotiations, the provisions of the Directive that might be affected by this work are those relating to industrial application and those relating to the deposit of a biological material with a recognised institution.
The patentability of inventions relating to plants and animals
The Directive distinguishes between plants and animals which are patentable and plant and animal varieties which are not. The reason for this differentiation lies in the means of achieving the product concerned: a plant or animal variety is generally obtained by essentially biological processes, while transgenic plants and animals are obtained through non-biological processes forming part of genetic engineering.
With regard to plants, the Directive reiterates that, while plants are patentable, plant varieties are not and are protected by plant variety rights. In delivering its judgment of October 2001, the Court of Justice pointed out that, under Article 4 of the Directive, a patent cannot be granted for a plant variety, but may be for an invention if its technical feasibility is not confined to a particular plant variety. The Court also concluded that a genetic modification of a specific plant variety is not patentable but a modification of wider scope, concerning, for example, a species, may be protected by a patent.
With regard to animals, Directive 98/44/EC stipulates that animal varieties cannot be patented. However, inventions relating to animals can be protected by patent if the technical feasibility is not confined to a particular animal variety. Amongst the many patents granted in the field of biotechnology since the adoption of the Directive in July 1998, some of those granted by the European Patent Office have provoked strong reactions from the public. One such case is a patent granted to the Seabright company relating to the creation of a transgenic fish, which gave rise to a written question to the Commission from a Member of the European Parliament. The question related in particular to the compatibility of granting this patent with the exclusion from patentability of animal varieties. In its reply, the Commission pointed out that one of the provisions of the Implementing Regulations to the European Patent Convention - which takes over the substance of the provisions of Directive 98/44/EC - lays down that a patent for an invention relating to an animal may be obtained if the claimed invention involves a technical measure which is not confined to a particular animal variety. This appeared to be the case with the patent granted to the Seabright company.
Finally, the Directive expressly makes provision for the patentability of microbiological processes and products directly obtained from such processes.
The patentability of inventions relating to elements isolated from the human body
Under Directive 98/44/EC, the human body, at the various stages of its formation and development - thus including the embryo -, is not patentable. It follows that neither the discovery of a sequence of a gene, nor the crude data relating to the human genome constitute patentable inventions. Only inventions which combine a natural element with a technical process enabling it to be isolated or produced for an industrial application can be the subject of an application for a patent.
In this field, two patents granted to the company Myriad Genetics gave rise to numerous questions from Members of the European Parliament to the Commission. These are patents which are based on an invention which allows screening for cancer of the breast and ovaries in women. The questions focused principally on the dangers which granting the patents might pose for the freedom of research in the EU, as well as on the high costs to European patients of access to the technology offered by the patents.
In answer to these questions, the Commission stressed that Directive 98/44/EC was not intended to call into question the freedom of research in Europe. It reiterated that, if research results were commercialised and these results used a technique which has already been patented, a sub-licence should be obtained from the holder of the patent. In addition, most national legislation in the Member States had adopted the principle of exempting prior use, which allows anyone who has already used the invention in the European Community, or had made effective preparations for such use before the patent was filed, to continue such use or to use the invention as envisaged in the preparations.
Exclusion from patentability of inventions whose commercial exploitation would be contrary to ordre public and morality
Directive 98/44/EC excludes from patentability inventions whose commercial exploitation would be contrary to ordre public or morality. Contrary to the arguments advanced under the action to annul the directive, the Court of Justice considered that the directive was sufficiently precise on this point and that the danger of wide differences of interpretation was not therefore a valid argument. The Court also considered that the national administrative and court authorities in the Member States were best placed to evaluate the validity of a biotechnological invention with regard to the ethical, sociological or philosophical context of each country.
The Directive specifies four explicit exclusions from patentability, which was not the case in the body of law applicable to patents. These are processes for cloning human beings, processes for modifying the germ line genetic identity of human beings, and the use of human embryos for industrial or commercial purposes. These explicit exclusions are a clear source of legal certainty.
Recent developments in the field of biotechnology and human stem cells show great promise for cures, particularly in the treatment of degenerative diseases. This is the case with parthenogenesis, which is defined as the development of an ovule without there having been any fertilisation by a spermatozoid. The Commission report also emphasizes the controversial status of cell lines obtained from multipotent cells which may themselves be created by "therapeutic cloning". These cell lines also, however, pave the way for considerable progress, which is the reason why the Commission suggests that discussions should continue on this question and on measures which could be taken to encourage this type of research.
Asked by the President of the Commission to look into the ethical aspects of the patentability of inventions involving human stem cells, the European Group on Ethics issued its opinion in May 2002. In it, the Group insists on the importance of ensuring a fair balance between the interests of the inventor and those of society, and hence of defining the conditions and limits for the patentability of stem cells. The protection conferred by a patent should relate to precisely described industrial applications, and not to a wide range of potential applications.
The Commission report concludes that the European legislator has endeavoured to create a functional system which respects the ethical principles recognised within the European Community. This report identified two key topics:
the scope to be conferred to patents on sequences or partial sequences of genes isolated from the human body;the patentability of human stem cells and of cell lines obtained from them.
These two topics will be investigated by a group of independent experts made up of professionals in the field of patents (scientists, lawyers, economists) who are highly qualified in the field of biotechnological inventions and genetic engineering. The group will also assist the Commission in defining the priority topics to be covered in subsequent reports.
Commission report of 14 July 2005, Development and implications of patent law in the field ofbiotechnology and genetic engineering [Not published in the Official Journal].
This second annual report presents the latest major developments that have taken place since the first report was published. It highlights the questions concerning the patenting of gene sequences isolated from the human body and the patentability of inventions relating to stem cells. It also reports on the implementation of the Directive.
DIRECTIVE 98/44/EC
Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions [Official Journal L 213 of 30 July 1998].
The Directive clarifies the distinction between what is patentable and what is not patentable. In particular, it confirms that the human body at the various stages of its formation and development, as well as processes for human cloning and for modifying the germ-line genetic identity of human beings, may not be regarded as patentable inventions.
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| People Ex Rel. Scott v. Gorman
People Ex Rel. Scott v. Gorman
ILLINOIS APPELLATE COURT — FIRST DISTRICT (3RD DIVISION) JUDGMENT VACATED AND CAUSE REMANDED.
OPINION FILED MAY 6, 1981.
THE PEOPLE EX REL. WILLIAM J. SCOTT, ATTORNEY GENERAL, PLAINTIFF-APPELLEE,v.PATRICK J. GORMAN ET AL., DEFENDANTS-APPELLANTS.
APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
M. COHEN, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
This cause is back before this court on the appeal of the defendant fund raisers, who argue that the trial court did not comply with this court's mandate. In the original action brought by the Attorney General, the trial court found that defendants Patrick J. Gorman, Martin D. Gorman, Helix, Inc., and Washington Information Services violated the Illinois solicitation of funds for charitable purposes act (the Act) (Ill. Rev. Stat. 1973, ch. 23, par. 5109) in soliciting and distributing charitable contributions pursuant to contracts with the charity entitled Police Hall of Fame, Inc. In that action the trial court found that the acts of the fund raisers violated the statute in that they constituted a fraud on the public. The court enjoined defendants from further solicitation and in a modified judgment assessed compensatory damages under the statute at $417,928. The court also imposed punitive damages in the amount of $150,000.
On appeal, we affirmed the finding of liability under the Act. (People ex rel. Scott v. Police Hall of Fame, Inc. (1978), 60 Ill. App.3d 331, 376 N.E.2d 665.) We also affirmed the injunction prohibiting the fund raisers from further solicitation of funds in Illinois. We held, however, that in refusing to allow the deduction of any reasonable and legitimate expenses from the campaign proceeds, the trial court erred in its interpretation of section 9 of the Act. Consequently, we vacated the award of compensatory damages and remanded the matter for further proceedings on the issue of compensatory damages. We reversed the assessment of punitive damages.
On remand, the trial court stated that our directive required an evidentiary hearing on the legitimacy of expenses. The Attorney General urged, instead, that damages be assessed under the alternate common law fraud count in the complaint. The trial court acquiesced and decided that an evidentiary hearing was unnecessary. The court proceeded to assess damages in the sum of $496,362, which represented a portion of the $614,452 in "invoiced costs" actually paid to the fund raisers. The court reasoned that because the program was wrought with fraud, any expenses received by the fund raisers were an unjust enrichment.
We initially turn to section 9 of the Act, under which the trial court held the fund raisers liable, and which we interpreted when reversing and remanding the trial court's compensatory damage award. Section 9 seeks to prevent frauds on the public in the solicitation and use of charitable contributions. (See, e.g., Village of Schaumburg v. Citizens for a Better Environment (1980), 444 U.S. 620, 62 L.Ed.2d 179, 100 S.Ct. 260.) Bearing on this latter purpose, the Attorney General may seek redress when a noncharitable entity, or a charitable entity using funds for noncharitable purposes, profits in an amount greater than 25% of the gross receipts of a contribution campaign. To make such a determination of profit, section 9 provides that legitimate and reasonable expenses of conducting the campaign are first to be deducted from campaign proceeds, to yield gross receipts.
The fund raisers contend that the trial court erred on remand by recomputing damages under the alternate theory of common law fraud in count VI of the complaint. They contend that in so doing the trial court exceeded the scope of our mandate. Additionally, the fund raisers assert that although common law fraud was pleaded, this theory was never proved at trial; nor was the original trial court damage award based on that theory. In the alternative, the fund raisers contend that the trial court utilized an improper standard for computing damages for common law fraud.
• 1 The trial court is required on remand to follow strictly the appellate court's mandate and may not exceed the directions of the appellate court. (Ptaszek v. Konczal (1957), 10 Ill.2d 326, 140 N.E.2d 725; Podbielniak v. Podbielniak (1965), 60 Ill. App.2d 357, 208 N.E.2d 625.) In the trial court's original judgment, damages were computed based on the statutory requirement that 75% of the gross receipts be used for charitable purposes. On appeal, we stated that the trial court misapplied the strictures of the statute in that it failed to examine expenses incurred and to deduct from the proceeds those expenses which were legitimate and reasonable. Accordingly, we remanded for a hearing on the legitimacy of expenses and a recomputation of damages consistent with our opinion. On remand, the trial court's order stated in part: "The Court further finds that an evidentiary hearing is unnecessary to determine `unreasonable and illegitimate' expenses under the Illinois Solicitation Act." In light of our explicit directive to the trial court that it conduct a hearing on the legitimacy of expenses, we hold that the court's failure on remand to examine the legitimacy of expenses constituted an evasion of our mandate.
• 2 We express no opinion as to the propriety of assessing damages under common law fraud where a complaint charges both a common law and statutory violation of the Act and where the trial court finds defendants liable under both counts. In the present case, however, the trial court assessed damages under the statute, and on appeal we directed the trial court to reassess damages under the statute. Accordingly, we are restricting ourselves to the propriety of the trial court's evading our mandate, as evidenced by its utilizing a different theory on damages for the first time on remand. The issue of damages for common law fraud, however, not having been passed on by the trial court, was foreclosed to that court on remand by the doctrine of res judicata. Village of Oak Park v. Swigart (1914), 266 Ill. 60, 107 N.E. 158; People v. Knox (1971), 3 Ill. App.3d 22, 278 N.E.2d 252.
• 3 We note, as an aid to the trial court on remand, that the existence of a scheme to defraud is explicitly relevant to an evaluation of a statutory violation. The Act authorizes the Attorney General to bring an action where "there is employed * * * in any solicitation or collection of contributions for a charitble organization of any device, scheme, or artifice to defraud or for obtaining money or property by means of any false pretense * * *." Accordingly, a determination that an expense was fraudulently incurred is certainly probative of the illegitimacy of unreasonableness of the expense. (See People ex rel. Scott v. Police Hall of Fame, Inc.) Yet only those expenses incurred relative to the fraud are pertinent in such an analysis. Hence, on remand, a finding that the program was generally fraudulent would not necessarily support a determination that all expenses incurred were illegitimate. With these principles in mind, it will be incumbent on the trial court on remand to ascertain the legitimacy of the particular expenses.
• 4 Additionally, we believe the assessment of "expenses incurred" involves more than an examination of "invoiced costs" as depicted in one of the exhibits offered by the fund raisers. We believe it elementary that all fruits of the campaign retained by the fund raisers constitute "expenses" as to the charity because but for such retention the charity would be the recipient of those fruits. Accordingly, the trial court must assess the legitimacy of the fund raisers' retention of the donor list worth $78,343 containing 49,000 names obtained as a result of the campaign, as well as the legitimacy of the rental charges of $35,951.36 to the chairity for use of its own lists.
Because we are vacating the trial court's award of damages for common law fraud, we will not address the fund raisers' alternative assertion that such damages must be measured by injury to plaintiff, as opposed to benefit to defendant.
• 5 We briefly address and reject the fund raisers' contention that the trial court's failure to hold an evidentiary hearing ultimately precluded a reviewing court from assessing the res judicata effect of the arbitration proceedings and federal litigation. In our earlier opinion, we rejected the argument that the arbitration proceedings and the Federal litigation had any res judicata effect on the issues in that appeal. Accordingly, that argument was foreclosed to the trial court on remand by the doctrine of res judicata. (See Smith v. Bishop (1962), 26 Ill.2d 434, 187 N.E.2d 217.) The fund raisers cannot now claim as error the application of that doctrine against them.
In light of the posture of the present case, a consideration of the fund raisers' remaining contention that the trial court improperly denied their petitions for a change of venue and for substitution of counsel seems unnecessary. The change of venue issue has become moot and, of course, counsel may now substitute and appear for the fund raisers. For the foregoing reasons, the judgment of the circuit court of Cook County is vacated, and the cause is remanded for further proceedings as to the assessment of damages consistent with the holdings of this court.
RIZZI, P.J., and McGILLICUDDY, J., concur.
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« The Morning Wrap |
| Supreme Court Will Hear Bilski Patent Case »
This Week in The National Law Journal
The National Law Journal this week honors champions, visionaries and pioneers in the Washington bar who have enhanced the legal community during the past year. The champions are the lawyers who have upheld the profession's core values, and visionaries applied business or legal acumen to expand their firm, improve government or advance the law. The pioneers are those lawyers who passed away in the past year but who leave a lasting legacy. "We believe this list represents the best of Washington law: the public-mindedness that pushes the law to greater heights and the clever strategizing that makes the nation's capital a leader in legal business," NLJ's editor-in-chief, David L. Brown, said.
In three articles, The National Law Journal explores the road ahead for Circuit Judge Sonia Sotomayor, tapped to replace retiring Supreme Court Justice David Souter. The NLJ's Chief Washington correspondent, Marcia Coyle, looks at some of the questions Sotomayor is expected to receive at her confirmation hearing. Questions about judicial activism are likely. Supreme Court correspondent Tony Mauro examines the handful of times where the Supreme Court has reversed Sotomayor, who sits on the U.S. Court of Appeals for the 2nd Circuit. "Reversal is a common if sometimes painful part of life for appellate judges, but rarely has it been scrutinized so closely as last week," Mauro writes. NLJ staff writer David Ingram delves into the life of "sherpas"—shepherds or chaperones, if you prefer—who guide Supreme Court nominees up the mountain of Senate confirmation.
Jeffrey Taylor, the interim U.S. attorney for the District of Columbia for more than two years, resigned his post last week to join Ernst & Young's Washington office, Joe Palazzolo reports. Sources say seven lawyers have applied for the post. Among the applicants: Assistant U.S. Attorney Roy Austin Jr., Nixon Peabody partner Anjali Chaturvedi, Wilmer Cutler Pickering Hale and Dorr partner Ron Machen, Wheat Wu partner Shanlon Wu and Principal Assistant U.S. Attorney Channing Phillips.
Lawyers closely following the government's civil racketeering case against the tobacco industry are digesting the federal appellate court ruling finding major cigarette manufacturers liable for conspiring to dupe American smokers about the addictiveness of smoking, NLJ staff writer Mike Scarcella reports. All eyes are on the Supreme Court now as lawyers expect certiorari petitions from both sides of the dispute—one of the largest civil RICO cases the Justice Department has brought. Posted by Mike Scarcella on June 01, 2009 at 09:27 AM | Permalink
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4th Circuit Holds a "Severe Temporary Impairment" May Constitute a Disability under the ADAAA
In the first published federal appellate court opinion to apply the expanded definition of disability contained under the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), the Court of Appeals for the Fourth Circuit in Summers v. Altarum Institute Corp., No. 13-1645 (4th Cir. Jan. 23, 2014), held that "a sufficiently severe temporary impairment may constitute a disability." The plaintiff, Carl Summers, was working as a senior analyst for the Altarum Institute, a government contractor with an office in Virginia. One day on his commute to work, while carrying a heavy bag over his shoulder, he lost his footing and struck both of his knees against the train platform. Summers fractured his left leg and tore the meniscus tendon in his left knee, fractured his right ankle and ruptured the quadriceps-patellar tendon in his right leg. Surgery was required and his doctors forbade him from putting any weight on his left leg for six weeks and estimated that he would not be able to walk normally for seven months at the earliest. Summers contacted Altarum about obtaining short-term disability benefits and working from home while he recovered, but Altarum agreed to discuss "accommodations that would allow Summers to return to work." Altarum did have a policy allowing employees to work remotely if the client approved. Altarum recommended Summer take short-term disability benefits and focus on getting better but they never followed up on his request to return to work, did not suggest any alternative reasonable accommodation or engage in any interactive process with Summers. Altarum also failed to inform Summers there was any problem with his plan to gradually return to work and instead terminated his employment "in order to place another analyst in his role at [the client]."
Summers then filed suit under the Americans with Disabilities Act (ADA) alleging discrimination based on disability and failure to accommodate. Summer amended his complaint but the district court dismissed these claims upon Altarum's Rule 12(b)(6) motion. The court held Summers failed to allege he was disabled and stated a temporary condition, even up to a year, does not fall within the purview of the ADA." The court also held Summers did not request a reasonable accommodation as working from home was unreasonable "because it sought to eliminate a significant function of the job."
On appeal, Summers only challenged the district court's dismissal of his discrimination claim, not his failure-to-accommodate claim so the 4th Circuit did not address it, unfortunately. In its analysis, the 4th Circuit noted the legislative intent of the ADAAA and Congress' intent to override the Supreme Court's decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 199 (2002), where the SCOTUS adopted a strict definition of the term "disability" and suggested a temporary impairment could not qualify as a disability in order for the ADA to apply to an individual. Congress believed that Toyota set an "inappropriately high level of limitation necessary to obtain coverage under the ADA." Pub. L. No. 110-325, sec. 2(b)(5). The Court then noted the EEOC's promulgated regulations which expressly provide that "effects of an impairment lasting or expected to last fewer than six months can be substantially limiting" for purposes of proving an actual disability. The regulations further state that although "[I]mpairments that last only for a short period of time are typically not covered," they may be covered "if sufficiently severe." In reversing the district court's dismissal of Summers' disability discrimination claim, the Court noted the district court's decision "represented an entirely reasonable interpretation of Toyota and its progeny." The Court further noted that it is the "first appellate court to apply the amendment's expanded definition of 'disability'," and also said this case presents an unquestionable instance of a disability. This allowed the Court to comfortable end their opinion with a line stating, "[u]nder the ADAAA and its implementing regulations, an impairment is not categorically excluded from ebing a disability simply because it is temporary."
As is the case with any new law with almost zero case law precedent, it will make employment decisions dealing with disabilities, temporary or not, more difficult which further necessitates the need for employers to consult with legal counsel. It'll be interesting to see how other circuits handle this issue under the ADAAA moving forward.
4th Circuit,
ADAAA,
Americans with Disabilities Act,
Americans with Disabilities Act Amendments Act,
disability discrimination,
Paul F. BellFebruary 4, 2014 at 4:12 AMAny idea of what 'sufficiently severe' includes?Also, maybe it is the first appellate court to decide on this, but what have the district courts found?ReplyDeleteAdd commentLoad more...
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AGL fined for licence breach over emission data
By Connie Agius
Gas company AGL has been fined by the New South Wales Environment Protection Authority for failing to publish monitoring data required under legislation.
The New South Wales Environment Protection Authority has fined AGL for failing to publish monitoring data required under legislation.AGL must obtain and publish emission data from its three gas compression engines at the Rosalind Park Gas Plant, which forms part of the Camden Gas Project in NSW.The Chief Environmental Regulator, Mark Gifford, said they did not fulfil these requirements, which are in place to improve the public's access to information about the environmental performance of licensed facilities."The EPA requires a monthly summary of the data to be published on the company's website within 14 days of the last data being obtained for that month," he said."When EPA reviewed the AGL website on 6 June 2013, the last data was for the month of January 2013. No data was published for the months of February, March and April 2013." The EPA started an investigation into this breach following inquiries made by the Australian Broadcasting Corporation. The maximum penalty for the breach for a corporation is $4,400.AGL has been issued a $1,000 fine for the breach."Once notified, AGL immediately published the data. The data indicates that emissions were not above the limits permitted by its Environment Protection Licence," Mr Gifford said. The EPA also fined AGL $1,500 in March this year for failing to maintain equipment in a proper and efficient condition at the Rosalind Park plant, which resulted in emissions of nitrogen oxides above limits permitted by the licence.AGL is still under investigation for failing to continuously monitor for emissions of nitrogen oxides between 2009 and 2012 at the same plant, also in breach of its licence conditions. Posted
Mon Jul 15 19:43:37 EST 2013
AGL under scrutiny for possible licence breach
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Happily Ever After for Some, Exploitation at Gunpoint for Others
Talk.Onevietnam.org,
Following two years of investigations, federal authorities arrested Huong Thi “Kelly” McReynolds, 58; James Hartful McReynolds, 60; Joseph Minh McReynolds, 36; and Vincent Minh McReynolds under allegations that the McReynolds family illegally lured Vietnamese nationals to the States through sham marriages and then forced their victims to work long hours in their wedding boutique in Flagstaff, Arizona, and at their home for seven days a week with little to no pay. The Reynolds’s business of ruining dreams is believed to have lasted for nearly ten years, between September 2001 and September 2008. Their victims were fearful to come forth.“Huong Thi McReynolds and her family lured these victims to the United States on the promise of the American dream; what the victims got instead was indentured servitude,” said U.S. Attorney Dennis Burke.He continued, “The defendants created a climate of fear inside their home and business by carrying firearms, berating the victims and threatening to physically harm them and shame their families inVietnam. They weren’t just exploited for their labor; they were robbed of their basic human dignity.”Officials involved in the operation, aptly called “Operation Broken Dreams,”say the McReynolds family’s activities were nothing short of “modern-say slavery.”“Through fraud and coercion, the McReynolds family engaged in modern-day slavery to support their business and live an easy life on the backs of these exploited victims,” said Matt Allen, a special agent with the U.S. Immigration and Customs Enforcement’s Homeland Security Investigations unit in Arizona.
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227 F. 2d 571 - United States v. Agioi Victores Nj Nj HomeFederal Reporter, Second Series 227 F.2d.
227 F2d 571 United States v. Agioi Victores Nj Nj 227 F.2d 571
UNITED STATES of America, Appellant,
The AGIOI VICTORES, her engines, tackle, apparel and
furniture, N.J. Pateras Sons, Ltd., as owner of the Agioi
Victores, N.J. Pateras Sons, Ltd., as general agents of the
Victores Shipping Corporation of Liberia, Appellees.
Warren E. Burger, Asst. Atty. Gen., Leavenworth Colby, Sp. Asst. to Atty. Gen., J. Stewart Harrison, Atty., Dept. of Justice, San Francisco, Cal., Keith Ferguson, Sp. Asst. to Atty. Gen., C. E. Luckey, U.S. Atty., Portland, Or., for appellant.
Wood, Matthiessen, Wood & Tatum, Erskine Wood, Lofton L. Tatum, Portland, Or., for appellees.
Before MATHEWS and POPE, Circuit Judges, and BOLDT, District Judge.
POPE, Circuit Judge.
In this admiralty case in rem, the United States sought to recover from the ship Agioi Victores damages sustained by its dredge Multnomah in a collision with the ship. N.J. Pateras Sons, Ltd., general agent and claimant of the Agioi Victores, which was owned by a corporation of Liberia, filed a cross-libel. An interlocutory decree was entered dismissing the libel of the United States and adjudging the cross-libelant entitled to recover for damages to the ship.
Upon its appeal here the United States asserts first that the district court erred in rejecting the contention made below that the dredge was a 'piece of plant, floating or otherwise', within the meaning of those portions of the Rivers and Harbors Act of 1899 which are set forth in Title 33 U.S.C.A. §§ 408, 411 and 412, and which appear in the margin.1 The collision here in question occurred when the Agioi Victores, moving down the Columbia River outbound for sea, struck the pontoon pipeline of the dredge, went through it and then sideswiped the dredge which was anchored on the northern edge of the Fisher Island ship channel. The dredge had been used by the Army Engineers Corps in dredging the ship channel, but at the time in question it was Saturday night, and it was anchored at the edge of the cut to lie idle over the week-end. Alluding to that portion of § 408 which makes it unlawful to injure 'or in any manner whatever impair the usefulness of any sea wall, bulkhead, head, jetty, dike, levee, wharf, pier, or other work built by the United States, or any piece of plant, floating or otherwise, used in the construction of such work', the Government here argues that the ship channel was an 'other work' within the meaning of this section, and that the effect of the section is to create a cause of action in admiralty for compensatory damages irrespective of negligence.
Appellees say that when § 408 is read with §§ 411 and 412 with their provisions for fines and imprisonment the statute as a whole must be considered to be penal in character, and that the words of § 408 must be construed to contemplate a conscious, willful act, not an act merely negligent, much less an act neither intentional nor negligent. While this suggestion is not without force, we find it unnecessary to pass upon it, for we think it clear for other reasons that § 408 does not apply to this case. A dredged channel has no resemblance to any of the works specified in the section. The listed items (sea wall, bulkhead, jetty, dike, levee, wharf, pier), are all physical structures. The rule of ejusdem generis would exclude the channel from the category of 'other work'. This is made most clear when we note that the language used says it shall not be lawful 'to make use of' the listed works 'for any purpose', providing however that the Secretary of War may, on the recommendation of the Chief of Engineers, 'grant permission for the temporary * * * use of any of the aforementioned public works'. Obviously this is not referring to a ship channel, for it would be absurd to suppose one could not 'make use of' it without this special permission. We agree with the statement of the trial judge that the statute 'does not apply under the circumstances here presented'.
Testimony as to what transpired before and at the time of the collision was given by witnesses in open court. The court found that the Agioi Victores was handled and navigated in the manner alleged and set out in detail by the cross-libelant, and 'There was no negligence on the part of the Agioi Victores.' It found that 'the man on watch on the dredge did not keep an alert and vigilant lookout and that the dredge was negligent in not giving fog signals sooner and that the proximate cause of the collision was the dredge's failure to give timely warning of its position.' We are asked to overturn these findings. The argument that we should do so starts with the propositions (a) that the Agioi Victores as a moving vessel coming into collision with the anchored dredge had the burden of overcoming the presumption that she was at fault, and (b) that a further presumption of fault on her part arises from her failure to produce her log books, as demanded by libelant, and her failure to produce the testimony of certain officers, engineers and seamen who were on duty at the time of the collision.
The Agioi Victores was in charge of one Caples, a Columbia River pilot who was navigating her as she moved down river. The trial judge heard his testimony, and observed him as he related in minute detail exactly how he handled the ship. He told how, as he proceeded he observed a haze ahead, and though visibility was better than a mile, he slowed down and from this point on was blowing fog signals regularly at one minute intervals. Farther on, at a point which he identified, he stopped the engines anticipating that the fog might get heavier, and intending to anchor at the first place that was possible. The ship then drifted on a 2.4 knot current for 14 or 15 minutes. At this point the channel makes a slight bend to the left, and to give the ship steerage way he 'gave her slow ahead' for approximately 30 seconds. He stopped the engines, continued to drift, and at that time, as he observed heavy fog ahead, he heard the first whistle from the dredge ahead, 'and it was very close'. He ordered engines full astern. Following the dredge's first whistle there were four or five exchanges of whistles when the dredge's pipe line loomed up under the ship's bow. At this point the dredge came in sight. Caples described the manner in which he maneuvered the ship to avoid hitting the dredge squarely. It was sideswiped.
With respect to the dredge the evidence showed that according to the latest information available to the pilot from the U.S. Engineers she was supposed to be in the part of the channel where the one-mile visibility still remained. When she was not found there, and the pilot approached the place where the heavy fog began, and he heard no whistle, he assumed the dredge had moved down to a section of the channel far below where it actually was. Only one member of the dredge crew was on duty at the time. He was supposed to act as lookout, blow whistles, and act as watchman. Although the fog was very thick, and it was nearly 8:30 P.M. on November 1, this man was below playing cards. He was having a cup of coffee at the entrance to the galley when he heard a whistle from the Agioi Victores. He then went up and blew the first whistle that the pilot heard as above described, continuing the exchange of whistles mentioned above.
We find nothing in the record to suggest that the trial judge did not give appropriate weight to the presumptions upon which appellant relies. It is plain that upon a consideration of all the evidence he found that the presumptions had been overcome. In reviewing this judgment of a trial court, sitting without a jury in admiralty, we may not set aside the judgment below unless it is clearly erroneous. McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6. Particularly in view of the superior advantage which the trial judge had because of his opportunity to see and observe the witnesses, we are of the opinion that the court's findings had abundant support in the record.
1 ' § 408. Taking possession of, use of, or injury to harbor or river improvements. It shall not be lawful for any person or persons to take possession of or make use of for any purpose, or build upon, alter, deface, destroy, move, injure, obstruct by fastening vessels thereto or otherwise, or in any manner whatever impair the usefulness of any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States, or any piece of plant, floating or otherwise, used in the construction of such work under the control of the United States, in whole or in part, for the preservation and improvement of any of its navigable waters or to prevent floods, or as boundary marks, tide gauges, surveying stations, buoys, or other established marks, nor remove for ballast or other purposes any stone or other material composing such works: Provided, That the Secretary of War may, on the recommendation of the Chief of Engineers, grant permission for the temporary occupation or use of any of the aforementioned public works when in his judgment such occupation or use will not be injurious to the public interest.'
' § 411. Penalty for wrongful deposit of refuse; use of or injury to harbor improvements, and obstruction of navigable waters generally. Every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections 407, 408, and 409 of this chapter shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction.'
' § 412. Liability of masters, pilots, and so forth, and of vessels engaged in violations. Any and every master, pilot, and engineer, or person or persons acting in such capacity, respectively, on board of any boat or vessel who shall knowingly engage in towing any scow, boat, or vessel loaded with any material specified in section 407 of this chapter to any point or place of deposit or discharge in any harbor or navigable water, elsewhere than within the limits defined and permitted by the Secretary of War, or who shall willfully injure or destroy any work of the United States contemplated in section 408 of this chapter, or who shall willfully obstruct the channel of any waterway in the manner contemplated in section 409 of this chapter, shall be deemed guilty of a violation of this chapter, and shall upon conviction be punished as provided in the preceding section, and shall also have his license revoked or suspended for a term to be fixed by the judge before whom tried and convicted. And any boat, vessel, scow, raft, or other craft used or employed in violating any of the provisions of sections 407, 408, and 409, of this chapter shall be liable for the pecuniary penalties specified in the preceding section, and in addition thereto for the amount of the damages done by said boat, vessel, scow, raft, or other craft, which latter sum shall be placed to the credit of the appropriation for the improvement of the harbor or waterway in which the damage occurred, and said boat, vessel, scow, raft, or other craft may be proceeded against summarily by way of libel in any district court of the United States having jurisdiction thereof.'
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382 F. 2d 475 - Luxenberg v. Mayfair Extension Inc HomeFederal Reporter, Second Series 382 F.2d.
382 F2d 475 Luxenberg v. Mayfair Extension Inc 382 F.2d 475
David LUXENBERG, Appellant,v.MAYFAIR EXTENSION, INC., et al., Appellees.
Argued Dec. 16, 1966.Decided July 26, 1967.
Mr. Warren E. Magee, Washington, D.C., with whom Messrs. Thomas G. Laughlin and Hans A. Nathan, Washington, D.C., were on the brief, for appellant.
Mr. Joel C. Wise, Washington, D.C., with whom Mr. Roger Peed, Washington, D.C., was on the brief, for appellees.
Before BAZELON, Chief Judge, and DANAHER, Circuit Judge, and COFFIN,* Circuit Judge of the United States Court of Appeals for the First Circuit.
DANAHER, Circuit Judge:
The board of Commissioners of the District of Columbia filed a complaint to enforce an order of the Department of Licenses and Inspections that appellee, Mayfair Extension, Inc., raze certain buildings wherein the appellant was lessee. The court entered an order accordingly on October 27, 1965. Having been joined in that action as a party defendant, Luxenberg had filed his third party complaint alleging an anticipatory breach by and claiming damages from Mayfair.1 This appeal challenges as erroneous the judgment2 which was entered in favor of the appellees.
* The November, 1951 lease under which Luxenberg first gained status accorded 'the exclusive right to conduct a food store in the present existing premises' for the duration of the lease 'should said premises remain in existence, or until the present building * * * is demolished for reconstruction or replacement purposes.'
Additionally the lease specified 'Upon the demolition of the present premises and upon completion of replacement facilities,' the lessee was to have 'the first option to lease the food market and Grocery facilities in said replacement facilities * * *.'
After an earlier renewal, the lease of the same premises was agains extended for five years from August, 1961, its terms to remain in full force and effect, with certain modifications. The lease as modified was executed in the name of Mayfair Extension, Inc. by L. S. Michaux, its president. Theterm was further extended for five years from November, 1966, just as the parties had agreed. Importantly, it was expressly provided that the lessee's 'first option to lease the food and grocery facilities which might replace the existing premises after the possible demolition thereof' was to remain in full force except as to 'the rate of rental to be paid in such case.' The lessee in the circumstance mentioned was to pay an amount equal to a bona fide offer which the lessor might receive from another prospective tenant. Luxenberg was to have thirty days after receipt of notice of any such terms 'within which to elect to exercise said option to lease the said replaced facilities.'
It appears that the parties knew from the very outset of their dealings that the store structure was subject to demolition for non-compliance with a 1946 building permit. The trial judge found that the District's proceedings had formally been initiated in September, 1962, had thereafter been carried through various administrative review steps but had culminated in a court order that the original structure be razed and that the lots be cleared by February 1, 1966.
It is apparent that the trial judge concluded, and we agree, that Luxenberg entitled to the rights of a lessee in the originally leased premises so long as they were permitted to stand. Otherwise, upon demolition of the building, the appellant had been accorded only the first option to lease the food and grocery facilities in a structure which 'might' replace the leased premises. Mayfair was under no obligation to construct a new building. Moreover, it is clear that if and after replacement facilities actually should have been constructed, recognition of the timely exercise of Luxenberg's option was to depend upon his matching whatever rate of rental might be specified in a bona fide offer to be submitted by another prospective tenant. We doubt that Luxenberg would seriously contend to the contrary respecting any of the foregoing conclusions. Moreover, he testified that he was 'willing to meet a bona fide (rental) offer and am willing to pay it.'
But the demolished structure was not replaced. No time had been fixed within which Mayfair was to reach a decision. Mayfair may or may not rebuild the grocery store facilities. If it shall do so, Luxenberg may elect to exercise the option in accordance with the terms mentioned.
The appellant claimed at trial and argues here that the appellees were guilty of an anticipatory breach of his rights. His contention stems from the fact that the appellees as of May 14, 1964, acting through the appellee Michaux, had signed a lease with a supermarket chain, Grand Union Company. The term was to run until July 31, 1980, and the premises included the very area covered by Luxenberg's option. The appellant argues that because of the provisions of that instrument, the appellees had put it beyond their power to perform their obligations to Luxenberg.
The record shows that about a year before the execution of the Grand Union lease, appellee Michaux had turned to one Wallace Agnew for professional assistance in financial transactions involving real estate. Agnew testified that he had sought to improve the financial position of the appellee Michaux and the corporations controlled by him. Agnew was aware that Luxenberg for some years had been Mayfair's lessee but had no knowledge that the term of his lease had been extended. On the assumption that the lessee had simply held over, Agnew on August 5, 1964 wrote to Luxenberg, notified him that the original leased structure had been ordered demolished, and requested Luxenberg to vacate the premises on or before October 1, 1964. In early September, Agnew with Michaux had attended a conference with Luxenberg's attorney and a lawyer from Agnew's firm. Copies of the extension document were distributed among those in attendance, and the status of Luxenberg was thereupon recognized. Agnew promptly wrote a letter under date of September 10, 1964 withdrawing the August 5, 1964 notice to vacate, cancelling the request, and giving notive that his 'principal does not at this time intend to demolish the existing premises.' Additionally, the letter reaffirmed the Luxenberg lease and informed the appellant that the 'lessor under such lease intends to follow the terms required by it to be performed under such lease, as amended.'
The May, 1964 lease to Grand Union in elaborate detail spelled out the respective rights of the appellees as 'Landlord' and of Grand Union as 'Tenant.' We may note as typical for present purposes:
'The Landlord shall commence construction of the Tenant's store on or before January 1st, 1965, and if Landlord shall fail to commence construction by said date Tenant may cancel this lease at any time thereafter before such construction shall be commenced.'
'The Tenant agrees that it will provide the Landlord with 60 days advance written notice of any cancellation of this lease pursuant to the provisions of paragraph 2 hereof, and furtheragrees that if on the first day of December, 1965 the premises are substantially under construction, it will defer exercise of its right of cancellation so long as such construction is continued with diligence and continuity.'
'The tenant presently considers the addition of at least 500 units to the Apartment Development known as Mayfair Mansion Apartments lying adjacent to the Shopping Center essential to its profitable business operation in the demised premises. It is therefore agreed that unless the Landlord shall on or prior to September 1, 1964, guarantee in writing to the Tenant that it will include an additional 500 units in said Apartment Development prior to the delivery of the demised premises to the Tenant, the Tenant may cancel this lease at any time thereafter prior to October 1, 1964.'
'The Landlord covenants and warrants it has full right and lawful authority to enter into this lease for the full term herein granted and for all extensions herein provided, and that it has a good and marketable title to the premises, free and clear of all occupancies, tenancies, mortgages, liens and other encumbrances except the following: None.'
The testimony before the trial court disclosed that Grand Union had not cancelled the lease despite its right to do so. Despite the apparent incompatibility between the Grand Union lease and the outstanding lease to Luxenberg, the trial judge observed that the appellees had not yet placed it out of their power to perfirm, they had not sold the property, whatever rights Luxenberg had still remained in effect,3 and Mayfair had expressed its intention to continue performance under the Luxenberg lease.
The trial judge concluded-- we think, correctly4 -- that the evidence failed to disclose a clear and unequivocal breach of the contract rights of Luxenberg. We go one step farther and say that if replacement facilities shall be constructed within the term of Luxenberg's lease and if Luxenberg shall elect to meet a bona fide offer to pay a rental equal to that offered by any prospective tenant, Grand Union or other, he will be entitled to the benefit of his agreement. That is as far as his conditional contract can be said to go.
But, the appellant would have us say the appellees had bound themselves, within a time certain, to erect a building for Grand Union. However he was not a party to that contract and had gained no rights under it; indeed, to the contrary, his whole claim stems from his contention that the rights purportedly created in favor of Grand Union were in derogation of his own.
The appellant next argues that we had earlier resolved similar issues in favor of his position in Friedman v. Decatur Corporation, 77 U.S.App.D.C. 326, 135 F.2d 812 (1943). Not so. There the appellant had agreed to buy certain land respecting which the contract was to be voidable if the seller should find it impossible to obtain certain wharfage facilities and the privilege of running a pipeline from the wharf to the premises in question. The agreement of the parties was expressly subject to that condition which, we observe, had been inserted for the benefit of the buyer. He could have waived performance of the condition. The seller could not obtain the benefits of the contract unless it had performed that condition. Such performance, however, might be excused if it should develop that the buyer would have failed to carry out his promise to acquire the premises whether the seller performed the condition or not. Despite efforts by the seller to fulfill the requirements of the condition, the buyer notified the seller that since he had been unable to complete business arrangements with an oil company, he could not and would not perform his part of the contract. The anticipatory breach by the seller was thus excused when the buyer cut off all pending efforts on the part of the seller to fulfill the condition. The appellant's reliance upon Friedman is unavailing.
Luxenberg points for support to Burke v. Thomas J. Fisher & Company,5 127 F.Supp. 1 (D.D.C.), aff'd, 95 U.S.App.D.C. 85, 219 F.2d 767 (1955). There an anticipatory breach of contract was found where a purchaser refused to perform his contract to buy certain real estate. In the lawsuit which followed, the purchaser contended that the tender of a deed was a condition precedent to his obligation to pay. The trial court found, correctly we concluded, that the condition of tender had been excused since the purchaser had clearly indicated his intention not to perform regardless of the tender.
Other cases cited by the appellant have no applicability. The appellant can not escape the fact that the construction of replacement facilities by the appellees was a condition precedent to the exercise of his option. The appellees, as owners, had simply decided not to fulfill a condition which they were under no legal obligation to meet. Since the owners had incurred no obligation to build, they had incurred no obligation to lease until and unless they built. There was no escalation of the appellant's rights by virtue of the lease between the appellees and Grand Union.
Sitting by designation pursuant to 28 U.S.C. 291(a)
In light of the evidence developed at trial, Gospel Spreading Association, Inc. and L. S. Michaux were joined as parties and aligned with Mayfair, and thereupon were treated as representing a single interest in the realty here involved. All three will hereinafter be referred to as appellees. Sixty per cent of the Mayfair stock is owned by Gospel, and forty per cent is owned by Michaux, who is also president of both corporations
The memorandum filed by Judge Walsh appears sub nom Tobriner v. Mayfair Extension, Incorporated, 250 F.Supp. 614 (D.D.C.1966) to which reference may be had for details not herein set forth
Luxenberg caused its lease as extended to be recorded September 24, 1964. Cf. D.C.Code 45-502 (1961), 31 STAT. 1268, ch. 854, 500
Cf. Roehm v. Horst, 178 U.S. 1, 20 S.Ct. 780, 44 L.Ed. 953 (1900)
Factual details are developed in the opinion of the trial court, ubi, supra
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News » NationalGay Couples Ask High Court for Marriage Equality by Mark ShermanAssociated PressFriday Feb 22, 2013 PRINT
Gay and lesbian couples who are challenging California's ban on same-sex marriage said Thursday that the Constitution prohibits discrimination against them in the nation's largest state or anywhere else in America.Prohibitions on gay marriage are enshrined in 30 state constitutions and in statutes in roughly 10 other states. "This badge of inferiority, separateness, and inequality must be extinguished," the two couples said in their legal brief filed with the Supreme Court.But they also laid out several options in the court's consideration of California's Proposition 8 that stop short of declaring full marriage equality across the United States.Gay marriage opponents are calling on the court to uphold the California provision by arguing that the justices should allow public and political debate over same-sex marriage to continue rather than impose a judicial solution. They also contend that states have a legitimate interest in encouraging heterosexual marriage and "responsible procreation and childrearing."The justices will hear argument in the California case on March 26 and in a separate challenge to the federal Defense of Marriage Act's definition of marriage as between a man and a woman a day later.Theodore Olson, the Republican lawyer who has embraced the issue of marriage equality, said he intends to ask for the broadest possible outcome when he argues to the court in March because gay men and lesbians are "denied the opportunity the rest of us have to get married and live in a family." Olson and Democratic lawyer David Boies have formed an unlikely partnership to represent the challengers to Proposition 8, approved by California voters in 2008 on the same day Barack Obama was elected president. The ballot initiative overturned a state Supreme Court decision allowing gay marriage.If the court were to adopt the gay couples' most far-reaching argument, same-sex marriage bans would fall in California and the 40 other states that do not allow gay couples to wed.Among the other possible results:-The justices could uphold the state ban on gay marriage and say citizens of a state have the right to make that call.-The court could endorse an appeals court ruling that would make same-sex marriage legal in California but would apply only to that state.-The court could issue a broader ruling that would apply to California and seven other states: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. In those states, gay couples can join in civil unions that have all the benefits of marriage but cannot be married.-The case could essentially fizzle without a significant ruling by the justices. That would happen if they were to find that the private parties defending Prop 8 have no right to be in court.Olson said the effect of the latter ruling would leave in place U.S. District Judge Vaughn Walker's decision that first declared the provision unconstitutional and would lead quickly to same-sex unions in California.The biggest remaining question before the justices hear arguments next month is whether the Obama administration steps into the case on the side of gay marriage proponents and, if so, how forcefully it argues on their behalf. The administration faces a Thursday deadline at the high court.Copyright Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.Related Topics: U.S. Supreme Court | Supreme Court | Proposition 8 | same-sex marriage | Marriage equality | gay marriage Comments
So Anti-gay marriage proponrnts statte this: "responsible procreation and childrearing." So if this is the reason for marriage: "responsible procreation and childrearing."then, straight Elderly and Sterile individulas shoud not be allowed to marry. Am I correct in my assumption , the ant-gay mariage proponents are including this in their proposal? Anonymous, 2013-02-23 10:08:33
The opponents said if the law gives gay couple the equal right, that will prohibit the heterosexual ’s family and proliferation. I don’t agree at all. These two things to me can exist together and they are existing somewhere now. It’s not difficult to get the data to see the relationship between marriage equality and fertility rate or heterosexual couples’ divorce rate. I think people are avoid pulling out true data since it will contradict what they aruge. Wayne Madden, 2013-02-25 17:58:08
Opponents of marriage equality base their premise on the idea that the primary purpose of marriage is procreation - then conveniently forget this when heterosexuals either cannot or will not have children. The fact is that the primary purpose of marriage is for two people who love and care for each other to make a commitment to love, support and live with each other. Producing and raising children is a totally separate choice. As a teacher (retired) I can assure you that having a happy marriage does not mean a couple will be good parents. Furthermore, most parents, who are not in a heterosexual marriage are excellent parents and - as any observant teacher can see - often more involved in their children’s lives.
Related StoriesObama Weighs Stepping In On Gay Marriage Case NATIONAL | By Julie Pace | Feb 21Facing heightened expectations from gay rights supporters, the Obama administration is considering urging the Supreme Court to overturn California’s ban on gay marriage - a move that could have a far-reaching impact on same-sex couples across the country.Laura Bush Wants Nothing to Do With New Gay Marriage AdPOLITICS | By Jason St. Amand | Feb 21Former First Lady Laura Bush announced Wednesday that she wants to be removed from a gay marriage ad campaign that uses a clip of her on CNN supporting marriage equality.Gay Marriage Ban Struck Down by Mexican High CourtINTERNATIONAL | By Jason St. Amand | Feb 20Mexico’s Supreme Court, citing U.S. Supreme Court rulings on discrimination, overwhelmingly ruled on Monday that laws that prohibit same-sex couples from getting married are unconstitutionalWin Free Stuff! Digital Copy Of "A PENTATONIX CHRISTMAS"!
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Home Real Estate Landlord And Tenant Lessee's Rights on Foreclosure and Subsequent Sale of Home or Property Real Estate
Lessee's Rights on Foreclosure and Subsequent Sale of Home or Property By Amy Loftsgordon, Attorney If you're a renter, how will the transfer of property ownership impact your lease or rental agreement? Rental properties, like other types of property, can be sold to a new owner or foreclosed upon in certain situations. While sales and foreclosures are major events for owners of rental property, a sale or foreclosure can have just as big an impact on someone who doesn't own the property, such as a tenant or "renter."
What happens to the renter when the residential property where he or she lives is either sold or foreclosed upon? In most cases, the lease continues if there's a "normal" sale, and it ends after a foreclosure. (Some states and cities, though, provide protections to renters following foreclosure.)
Ordinarily, if your landlord sells the rental property where you live, your lease doesn't end (or “terminate”).
As a renter, you can protect your rights and interests if you understand what happens after a sale or foreclosure of rental property.
What Happens to Tenants in an Ordinary Property Sale
Ordinarily, if your landlord sells the rental property where you live, your lease doesn't end (or “terminate”). Rather, the buyer of the property becomes your new landlord and must comply with both the length and terms of the existing lease.
Likewise, you remain bound by the lease and must perform all your obligations and duties under it, such as paying rent, keeping the premises clean, and not destroying or damaging the property.
If you don’t pay the rent or otherwise comply with the lease terms, the new landlord is entitled to the same remedies that the old landlord (the property seller) had against you. This means the new owner can try to collect whatever you owe or could begin eviction proceedings, just as the old landlord could have.
How Long the Tenant Gets to Stay in the Property Following a Sale
Whether you, as a renter, get to stay in the property following the sale (and for how long) will ultimately depend on the type of lease you have.
Fixed-term lease. If your lease is for a specific time period (say, one year), you have the right to stay in the rental property until the end of the term. The new owner/landlord can't evict you (unless there is a legal reason for the eviction) or raise the rent during this period. The landlord must also obtain the security deposit that you paid to the old landlord and then refund it to you when the lease expires (if you’re entitled to it).
Fixed-term lease with a special provision (a right of termination). Some leases specifically say that a sale of the property automatically ends the lease. If your lease contains this provision and your landlord sells the property, your lease terminates. You would then have to move out or sign a lease with the new owner. However, if your landlord sells the property solely for the purpose of terminating the lease, a court would likely find that the lease did not terminate and that you're entitled to stay on the premises or receive damages for the landlord's wrongful conduct.
Month-to-month lease. If your lease is month-to-month, the new owner can terminate your tenancy by giving you the required amount of notice, typically 30 days under state law, though it could be less. (For example, Colorado law requires only seven days' notice to terminate a month-to-month lease.)
Whether and When You Will Receive Notice About the Property Sale
State law typically requires the current landlord (or the new landlord) to give tenants information about the sale and/or to provide the new landlord's name and address. This way, you’ll know where to send rent payments and who to contact about maintenance or repair issues.
For example, in Massachusetts, the old landlord must send the last month’s rent and security deposit to the new landlord. The new landlord must then give the tenant written notice of the transfer within 45 days of receiving those amounts. The notice must also contain the new landlord’s name, business address, business telephone number, and contact information for the new landlord’s agent (if there is one).
What Happens to Tenants in a Property Foreclosure
Foreclosure is the legal process by which a lender gets the right to sell a property because the property owner defaulted on the mortgage. The sale proceeds are used to satisfy the mortgage debt.
If your landlord fails to make its loan payments, or defaults on a mortgage in some other way (such as not paying the property taxes or insurance premiums), the bank or mortgage company will likely start a foreclosure on the rental property.
You won’t have to move out while the foreclosure process is going on. You must, however, continue to pay rent and comply with all terms of the lease during the foreclosure.
When a Tenant Has to Move Out After a Foreclosure
Whether you’ll have to move out after the foreclosure primarily depends on two critical questions.
When did your lease begin?
When did the landlord take out the mortgage?
What happens if you signed the lease before the landlord got the mortgage. Usually, if you signed the lease before the landlord took out the mortgage on the property, the lease continues after the foreclosure. In this situation, you can't be evicted unless you violate the terms of the lease.
However, if you signed a subordination agreement, in which you agreed that the mortgage had priority over your lease, the foreclosure will probably terminate the agreement. (Residential leases sometimes have a clause that requires the tenant to sign a subordination agreement if the lender later takes out a new mortgage or refinances.)
What happens if you signed the lease after the landlord got the mortgage. If you signed your lease after the mortgage was taken out, the foreclosure terminates the lease. In most cases, the new owner can then have you evicted. (The new owner will have to give you proper notice to vacate before evicting you.)
Do Any Laws Protect Tenants After a Foreclosure?
In 2009, a federal law called the “Protecting Tenants at Foreclosure Act” went into effect. Under this law, the new owner (the person or entity that purchased the property at a foreclosure sale) had to honor an existing residential lease until it ended, unless that new owner wanted to live in the home. In that situation, the new owner had to give the tenant 90 days' notice to move out. In addition, month-to-month tenants were entitled to 90 days’ notice before having to move out under the law.
Unfortunately, this law expired at the end of 2014. A permanent version of the law was introduced to Congress in 2015, but it is unlikely that it will pass.
Other Laws That Protect Renters
Fortunately for some renters, certain states have laws that are similar to the expired federal law, which give tenants protection from eviction after a foreclosure. Some cities also provide eviction protections to tenants.
California law that protects renters. California law says that the purchaser who buys a property at a foreclosure sale must honor a fixed-term residential lease (if entered into before title is transferred at the sale) through the expiration of the lease, unless:
the purchaser intends to live in the home
the tenant is the child, spouse, or parent of the mortgage borrower
the lease between the tenant and the mortgage borrower was not an "arms' length" transaction, or
the rent is substantially below fair market value (not including government-subsidized tenancies).
If any of the above are true, the purchaser gets the right to evict the tenant. The purchaser must give the tenant a 90-day notice to quit (vacate) before filing an eviction lawsuit with the court. The purchaser must also give 90 days' notice to month-to-month renters to end a tenancy.
And, even if it looks like the purchaser can proceed with an eviction based on this law, an eviction might still not be possible in California cities that have “just cause” eviction laws.
The California law that protects renters after a foreclosure is scheduled to sunset (expire) on December 31, 2019, unless it is extended.
Illinois law that protects renters. Under Illinois law, anyone who buys a residential property through a foreclosure can terminate a bona fide (genuine) lease only:
when the lease ends, with no less than 90 days' written notice (though if the buyer at the foreclosure sale intends to occupy the property as a primary residence, the lease can be terminated with 90 days' notice) or
by no less than 90 days' written notice in the case of a month-to-month or week-to-week term.
The New Owner May Let You Rent the Property
If your state’s laws do not protect renters after a foreclosure, one way to avoid losing your rental home in this situation, at least for a while, is to work out a deal the new owner. You might be able negotiate a new lease or other agreement that will allow you to stay in the property.
Fannie Mae, for example, offers a program that allows renters to remain in the property after a foreclosure by paying rent to Fannie for a period of time. In addition, renters may be eligible to get financial assistance if/when they choose to move out.
Questions for Your Attorney
I just found out that my landlord is in foreclosure. I've been paying rent regularly, but now he's nowhere to be found. The bank says I'm late on rent and it wants to evict me. What can I do?
I heard that tenants in rent-controlled buildings can't be evicted in a landlord's foreclosure action. Is that true?
I just received a summons and complaint on my landlord's foreclosure action. Should I start looking for a new place to live right now, or will the bank keep my lease in place? Do I have any say in the matter?
Does my state have any laws protecting tenants during a sale or foreclosure?
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This Evidence Alone Points to a Cover Up of Extortion 17
Written by: Tim Brown
Published on: June 29, 2015 shares Share Tweet Plus Pin LinkedIn Print Email In a previous article, I pointed out that testimony concerning the downing of SEAL Team Six aboard Extortion 17 revealed that there were seven Afghans on board, who still, to this day, remain unidentified. I followed that up by pointing out that the mission of Extortion 17 was delayed by more than four minutes from its original landing time and thus, it is theorized that these Afghans could have engaged in a Green on Blue attack against Americans. However, it is the fact that the Afghan bodies were flown back to the states and presumed to be cremated along with US soldiers’ bodies. It is with that understanding that I think there is a glaring indication of a cover-up of the downing of Extortion 17 in order to suppress evidence of a Green on Blue attack, a possible trade off with the Taliban for the alleged death of Osama bin Laden.
Consider that in testimony, it was also pointed out that the Afghan government was given eyes on all of America’s Special Operations and even technically has the authority to squash those missions, though they have never used it that we know of.
Second, consider that both Vice President Joe Biden and former Central Intelligence Agency Director and former Defense Secretary Leon Panetta revealed that it was the Navy SEALs who allegedly took out Osama bin Laden, and on top of that revealed that it was members of SEAL Team Six involved in the operation. Three months later SEAL Team Six was taken out on Extortion 17 by the Taliban.
Third, the seven Afghans, minus the Afghan interpreter, on board Extortion 17 were not the Afghans listed on the manifest. Those particular Afghans were alive and well. These men have never been identified and the status of their bodies is completely unknown.
However, many of the bodies of the SEALs were apparently cremated following the shoot down. Why? According to Don Brown, a former Navy JAG officer and author of the book Callsign Extortion 17: The Shoot-Down of SEAL Team Six, “The military claims none of the remains are identifiable.”
However, Brown went on to point out that “…testimony in the Colt Report, autopsies, and the report from the local coroner clearly contradict that claim.”
That isn’t all.
Charles Strange, whose Navy SEAL son Michael was aboard Extortion 17, said that he obtained a copy of his son’s autopsy report along with photographs of his body, which showed no sign of fire damage.
“There’s nothing wrong with the body except for his ankle, but they claimed everybody was burned beyond recognition, yet there he was lying there whole and intact,” Strange said. “His hair and arms weren’t burned, and there was no sign of smoke in his lungs. When I called the command up and asked them about this, they seem shocked that I had the photo. They told me ‘we’ll get back to you,’ but they never did.”
“Why did they cremate my boy? We are Christians and do not believe in cremation; there was no reason for them to do that,” Strange said.
We also have the claim of Rep. Jason Chaffetz (R-UT), whose dog and pony show congressional hearing failed to even ask about the status of either the Americans’ bodies or the Afghans’. Chaffetz claimed, “The body I saw didn’t need to be cremated.”
Take into account also that the Afghans’ bodies were flown back to the states with our fallen American soldiers.
Brown, in recounting this odd move writes, “Think of the oddity of bringing foreign soldiers back to the United States to have their bodies disposed of here. It would seem that the Afghans, if they were up to something honorable, would be entitled to a burial with honors in Kabul or an Afghan military cemetery somewhere in Afghanistan.”
“Think of how odd it would be if, on the beaches at Normandy, the bodies of the fallen British and Canadian soldiers had been scooped up by the United States and brought back to the United States for disposal, rather than being left with the military authorities for a dignified treatment and burial in their own countries,” Brown mused. “Such treatment would have been an arrogant slap in the face to America’s British and Canadian allies.”
So, why would the US be handling the Afghan bodies, and were they cremated? Some may ask, why is this relevant? Lt. Commander Don Brown has an answer.
“If the bodies were cremated, DNA evidence was destroyed,” Brown writes. “If DNA evidence was destroyed, it becomes impossible to identify the unidentified Afghans. Thus, if the unidentified Afghans were Taliban infiltrators or sympathizers, their identities will probably never be known because of the military’s decision to cremate. If, in fact, this aircraft was infiltrated, and possibly even sabotaged by Taliban sympathizers who drew weapons while the aircraft was in flight, or possibly communicated with Taliban attackers on the ground, then cremating the bodies might be a way to keep that information from the public. Could this explain why the bodies of the Afghans, strangely, were brought back to the United States?”
I think it could be. And, we know it wasn’t just Afghans who were unidentified by a grave marker in Arlington.
Immediately following a press release by four families, who revealed government culpability in the deaths of those who died on Extortion 17, I reported that a Muslim cleric was invited to speak at a ramp ceremony before the bodies were flown back to the states. According to several reports that consulted several Arabic translators, the imam damned the fallen SEALS to Hell as infidels.
If cremation was provided for American soldiers, such as Michael Strange and others (some of which had bullets in their bodies), along with the Afghans, is it really farfetched that there is a cover up going on with Extortion 17? I think not.
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Motion to Instruct Conferees on H.R. 2112, Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2012
By: Bill Pascrell, Jr.
Date: Nov. 3, 2011 Location: Washington, DC BREAK IN TRANSCRIPT Mr. PASCRELL. I thank the gentleman from Washington for yielding.
I want to thank Mr. Dicks for his leadership on this issue. I want to thank Mr. Rogers for his open-mindedness, as usual, hopefully as we go into this discussion.
As cochair of the House Law Enforcement Caucus, I want to call everyone's attention to one of the glaring differences between the bill the Senate passed earlier this week and the one reported by our own Appropriations Committee: Funding for our local police officers.
The Senate bill contained $232 million for the COPS office, including $200 million for COPS hiring. This bill completely eliminated funding altogether. We're here today to try to rectify that situation.
Mr. Speaker, we know that State and local governments are still slashing their budgets as a result of the recession. In fact, just last week the Department of Justice released a sobering report, ``The Impact of the Economic Down turn on American Police Agencies.'' I think all of our Members should read it. I want to place this as Exhibit A in my presentation today, Mr. Speaker, into the Record.
The report revealed that nearly 12,000 law enforcement officers will lose their job this year alone. Another 30,000 positions remain unfilled, and 2011 would produce the first national decline in law enforcement officers in 25 years.
Less cops on the beat means more crime on the streets, plain and simple. It is a very specific aspect of this particular problem. It's not going to get better.
I work very closely with my counterpart, Representative Reichert, who was a sheriff's officer in Washington State, to cochair the Law Enforcement Caucus. Earlier this year, 115 Members of this body, Republicans and Democrats, supported these programs in a letter to appropriators.
It is just not enough, Mr. Speaker, to pat our police officers on the back. We must support them. The Federal Government has a particular responsibility, specifically, to debate the issue and look at the issue of homeland security. They're the first there, our firefighters. If there's any manmade disaster or act of nature, they show up first before anybody from the Federal Government.
To see the number of police officers being reduced in this country is unconscionable, particularly after 9/11. Our crime is rising specifically in the towns where these police officers have been laid off, furloughed, demoted--and certainly lack the promotions. The Federal Government has some responsibility here.
I would also like to place into the Record a very strong statement on the issue of the matter of crime in our cities and in our towns. I will make that Exhibit B.
I think the homeland security issue is a critical issue. But let's bring it back to our own towns. Police departments in the United States now have put on a list of priorities what they're going to respond to and what they cannot respond to.
Listen to these. They've stopped responding to motor vehicle thefts in many towns. They've stopped responding to burglar alarms that go off. They've stopped responding to non-injury motor vehicle accidents. In many towns, the warrant squads--if you don't know what a warrant squad is, then you don't know what police departments do day in and day out. They've minimized, two or three people left to try to find the folks that have perpetuated crimes in our communities.
They've reported decreases in investigations of property crimes. You talk about a response when you call the police department. Wait till you see the response in terms of investigating these particular crimes.
This has all come out under the Justice Department. I'm not making these numbers up. That's why I submit for the Record the numbers.
Let me just conclude, Mr. Speaker, in saying this has to be a priority. Protecting the public is our primary priority, and I ask consideration of what the gentleman from Washington is putting forth today.
BREAK IN TRANSCRIPT
Source: http://thomas.loc.gov
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Bart Whitaker talks about killing family, death row complaints
Posted: 7:12 AM, August 02, 2012
Updated: 7:12 AM, August 02, 2012
HOUSTON - Imagine going out to dinner knowing when you got home that your family would be shot dead. That was Bart Whitaker's heinous plan. Read It: Class Action ComplaintInside his Sugar Land home in 2003, it worked almost to perfection. Now, in his first Houston interview from death row, Whitaker talks about the crime nine years ago and the surprising reasons he's now suing the state over his punishment."I've made some really bad mistakes in my life," said Whitaker during a 40-minute interview with KPRC Local 2. "I was a very messed up young man. There are some people who are never going to get past that."When you remember the unbelievable magnitude of the crime Whitaker committed, you know why many feel that way. After a family dinner on celebrating a lie that he'd graduated college, Whitaker and his family drove home to their upscale Sugar Land home on Dec. 10, 2003. Then they walked into ultimate betrayal.A masked gunman inside their home shot and killed Whitaker's 19-year-old brother, Kevin, in the front room of the house. Then, he shot and killed Whitaker's 51-year-old mom, Tricia. The shooter wounded Whitaker's 54-year-old father, Kent, and a bullet hit Whitaker in his arm.It all looked like a robbery turned nightmare.But when the crime's puzzle was put together, all clues pointed to Bart Whitaker. Turns out he hired the gunman, orchestrated the murders and did it all for what prosecutors called "irrational hate." Fort Bend County jurors sentenced him to death."Obviously, I think about what I could have done every day," Whitaker said. "But those types of thoughts are really torture back here. I have to limit myself to the good I can do in the here and now, or otherwise I will break."Whitaker said he often feels like he's watching a movie of someone else's life."If there's any way my mother and brother are watching me, I want them to be proud of the way I'm living now," said Whitaker. "That is foremost in my mind every minute of every day."Almost ironically, Whitaker spends his day battling against the punishment for his crime. He filed a class-action lawsuit against the state for what he said are the cruel and unusual conditions on death row. Whitaker's lawsuit complains about the lack of TVs and telephones, bad food and poor medical care, and mostly about the forced isolation. Inmates on death row are forced to stay at least 23 hours in their cell every day with no interaction with anyone else.He knows people in Houston believe the conditions are exactly what he deserves. "Nobody is trying to create the Ritz Carlton back here," said Whitaker. "All we're trying to create is a rational environment where punishment has a purpose. That should be what incarceration is about."One person standing by Whitaker is his dad. Kent Whitaker now travels the country speaking about forgiveness. He wrote a best-selling book about it and still visits his son almost every week."We are closer now that we have ever been," Bart Whitaker said. "We were basically two ships passing in the night. Now, we're very close and I think in certain aspects he's proud of me for some of the things I've done in here."However, Bart Whitaker continues to disconnect himself from that December night in 2003. He refers to that time as his "former life." He said he now chooses to no longer go by the name Bart, but by his first name Thomas. The Sugar Land inmate said he now also wants to be remembered for changing the way Texas punishes those who commit such terrible crimes."I'm going to be the lightening rod on this until someone else better qualified stands up," said Bart Whitaker. The Texas Department of Criminal Justice had no comment on Bart Whitaker's lawsuit. A representative said the TDCJ does not talk about pending litigation.Death Row inmate thinks death penalty unfair to his fatherWhitaker also talked about his eventual execution day."Obviously, everyone back here (on death row) has plenty of time to think about their lives," said Whitaker.Whitaker said he does not spend much time thinking about his execution day, but he's not ignoring it."I don't worry about it because I don't expect it to happen. I do expect it to happen," said Whitaker. "It's just not something I concern myself with on a daily basis. I'm comfortable with all of that."What Whitaker said he's not comfortable with is the situation left for his father. Kent Whitaker has forgiven his son. He pleaded for jurors to spare Bart Whitaker's life. However, one day Kent Whitaker will likely see his only surviving son be put to death because of the heinous act of the crime."Yes, we've talked about it," Bart Whitaker said. "I'm not sure what the state of Texas thinks it's getting out of all of this. It's sort of like, I feel like I'm going to revictimize (sic) my father again. I don't know what to do about that. I understand there is a time when victims want an execution for closure, but this wasn't the case."So far, there's no date set for Bart Whitaker's execution. His criminal case still has one final federal appeal pending.
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NWAC condemns matrimonial property legislation
by admin, March 4, 2008 Twitter0Google+0LinkedIn0Pinterest0by Lloyd Dolha
The Harper government has introduced legislation to protect the matrimonial property rights of aboriginal women.
In bringing in the bill on March 4th, Indian Affairs Minster Chuck Strahl, said the legislation will deal with the division of matrimonial property in marital break-ups and will offer the same protection to women and children on reserve as are available off reserve.
“Our government is taking concrete, practical action to fill an intolerable, inexcusable legislative gap that has existed for far to long,” said Strahl. “It’s the 21st century, and yet we continue to hear stories of aboriginal women suffering because this legislative change has not been made – a change which was made for other Canadians decades ago.”
The Indian Act is silent on the issue and provincial and territorial laws cannot be applied to reserves, meaning there is no legal provision for the equitable distribution of property following the collapse of a marriage.
The legislation will also allow First Nations communities to develop their own community-specific laws to deal with matrimonial property.
The department of Indian Affairs said the bill was drafted after wide consultations dating back to September 2006.
Strahl acknowledged that some aboriginal communities might have concerns about an invasion of their jurisdiction, but said that he conducted extensive consultations to produce a balance piece of legislation. Drafts of the legislative proposal were also shared with the Native Women’s Association of Canada (NWAC) and the Assembly of First Nations.
But the Native Women’s Association of Canada said those consultations were a sham and the federal government has acted unilaterally in trying to resolve the issue of a lack of matrimonial real property laws that apply on reserve. The association said that despite engaging in discussion process with national aboriginal organizations, the federal government’s legislation – known as The Family Homes on Reserve and Matrimonial Interests or Rights Act – does not have the support of NWAC.
In a press statement, NWAC said the Minister Strahl was well aware that NWAC did not support the legislative draft proposed after a lengthy meeting in December in which the association outlined the critical importance of systemic solutions, the promotion of indigenous legal systems and the need for non-legislative solutions. NWAC argues that non-legislative solutions are necessary to make the rights in the legislation real for communities.
“As a result,” notes NWAC president Beverly Jacobs, “we have not experienced our relationship with the federal Department of Indian Affairs as being one of partnership or even consultation, but rather it feels like another experience of colonialism, or at best piecemeal, individually based solutions that will not result in real equality for the women we represent.”
Matrimonial property refers to the house or land that a couple lives on while they are married or in a common-law relationship. In 1986, The Supreme Court of Canada ruled that provincial and territorial laws regarding matrimonial real property do not apply to reserve land. The gap in the law has had serious consequences, because when a marriage or relationship ends, there is no law that aboriginal couples who live on reserve can use to help then resolve a dispute.
NWAC says that this gap means that women who are experiencing violence, or who have become widowed, may lose their homes on reserve. As a result, the law harms aboriginal women and children more often than aboriginal men.
During 2006, the association held extensive meetings across the country with aboriginal women, who were directly impacted by the lack of matrimonial property laws that apply on reserve. NWAC said that from those meetings, it was clear that the issues of violence, poverty housing crises and the power of chiefs and councils were intimately woven into the stories the women shared.
NWAC argues that an integrated approach that looks beyond the idea of legislation as a solution is required. In their report Matrimonial Real Property: A People’s Report, the association stresses the connections between the lack of matrimonial real property laws and the intergenerational impacts of colonization, violence against aboriginal women, and a limited access to justice.
“I promised aboriginal women who participated in providing solutions to this issue that their voices would be heard,” said Jacobs. “I worked hard to get their messages to government, but those messages fell on deaf ears.”
“I now fear that there is going to be more harm done than good. There is nothing in the legislation that addresses the systemic issues of violence many women face that lead to the dissolution of marriages nor is there any money available for implementation. In the end, we end up with a more worthless piece of paper.”
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Supreme Court justices agree to hear first abortion case since 2007
Print The Supreme Court is taking on its first abortion case in eight years, a dispute over state regulation of abortion clinics. The justices said Friday they will hear arguments over a Texas law that would leave about 10 abortion clinics open across the state. A decision should come by late June, four months before the presidential election. The high court previously blocked parts of the Texas law. The court took no action on a separate appeal from Mississippi, where a state law would close the only abortion clinic, in Jackson. States have enacted a wave of measures in recent years that have placed restrictions on when in a pregnancy abortions may be performed, imposed limits on abortions using drugs instead of surgery and raised standards for clinics and the doctors who work in them. The new case concerns the last category. In Texas, the fight is over two provisions of the law that Gov. Rick Perry signed in 2013. One requires abortion facilities to be constructed like surgical centers. The other allows doctors to perform abortions at clinics only if they have admitting privileges at a local hospital. Texas had 41 abortion clinics before the clinic law. More than half of those closed when the admitting privileges requirement was allowed to take effect. Nineteen clinics remain. The focus of the dispute at the Supreme Court is whether the law imposes what the court has called an undue burden on a woman's constitutional right to an abortion. If allowed to take full effect, the law would leave no abortion clinics west of San Antonio and only one operating on a limited basis in the Rio Grande Valley. The state has argued that women in west Texas already cross into New Mexico to obtain abortions at a clinic in suburban El Paso. In its decision in Planned Parenthood v. Casey, in 1992, the court ruled that states generally can regulate abortion unless doing so places an undue burden on women. Casey was a huge victory for abortion-rights advocates because it ended up reaffirming the constitutional right to an abortion that the court established in Roe v. Wade in 1973. In 2007, a divided court upheld a federal law that bans an abortion procedure that opponents call partial-birth abortion and opened the door to new limits on abortion. Advertisement
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Charges dismissed in retrial of man convicted of Chandra Levy murder
Print The U.S. Attorney's Office in Washington, DC on Thursday moved to dismiss the case -- and a retrial -- against Ingmar Guandique, the illegal immigrant previously convicted of murdering intern Chandra Levy in May 2001, citing "unforeseen developments." Related Image
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The U.S. Attorney's Office dropped charges against Ingmar Guandique on Thursday.
Guandique, an illegal immigrant from El Salvador, is set to be released to U.S. Immigration and Customs Enforcement for removal proceedings. The 2010 conviction of Guandique -- and the 60-year prison sentenced imposed on him at the time -- was vacated and a new trial was ordered in 2015 based on what Guandique's defense team said was new evidence. "Today, in the interests of justice and based on recent unforeseen developments that were investigated over the past week, the Office moved to dismiss the case charging Ingmar Guandique with the May 2001 murder of Chandra Levy," the U.S. Attorney's Office said in a statement. "The Office has concluded that it can no longer prove the murder case against Mr. Guandique beyond a reasonable doubt." Levy's 2001 disappearance created a national sensation after the Modesto, California, native, and intern with the Federal Bureau of Prisons, was romantically linked with then-Congressman Gary Condit. Related Image
July 11, 2001: Then-Rep. Gary Condit, D-Calif., leaves his Washington apartment. The remains of the 24-year-old were found in Washington's Rock Creek Park in 2002. Prosecutors argued her death fit a pattern of attacks Guandique committed on female joggers. Condit was a suspect in Levy's murder for a period of time, and Guandique's defense team reportedly planned to introduce evidence at the retrial implicating him in Levy's death. Condit, a Democrat, left Congress in 2003 after losing his party's primary to an ex-aide. The Associated Press contributed to this report. Advertisement
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