Codes,rules, statutes, regulations of government apply to ...
Rodrigues vs. Ray Donovan
codes,rules, statutes, regulations of government apply to the juristic society
Date: Thu, 24 Feb 2000 17:48:49 -0500
From: Don Jaynes gypsyd-@
Subject: [Fwd: Malfeasance and Fraud by the Toledo Municipal Corporation]
To: nodeb-@
Hi Gene,
I sent this Fritz Wenzel of the Toledo Blade. Fritz has a column and has
been a friendly advocate of the Libertarians here in town. I have
contacted two local television stations who have a "call to action"
ideology for individuals in the surrounding area. I have also started
correspondence with a local AM talk show. I have just begun to fight.
The worst they can do is run my butt out of town, which would really be
a blessing. I'll keep you posted on future events. Any suggestions would
most appreciated.
Yours In Freedom,
Don Jaynes
Date: Thu, 24 Feb 2000 17:39:28 -0500
From: Don Jaynes gypsyd-@
To: frit-@
Subject: Malfeasance and Fraud by the Toledo Municipal Corporation
Dear Fritz,
I have enclosed two attachments to this brief commentary. One will be on
Law definitions taken from Black's 6th Edition. The other will be case
rulings and Statutory Acts.
First off, one must know the law. It is expected of citizens of any
state of the union. Now many will say that the "Law" is too
overwhelming, complex and voluminous to have complete knowledge of it. I
believe those individuals are correct from a realistic stand point,
however, the "Court" expects the citizenry to know the law.
I believe the Toledo Municipal Corporation, a null tiel, fictional
entity, has imposed upon the fair people of Toledo a regulation that is
not to be obeyed with the exception of the Employees of the Toledo
Municipal Corp. The regulation that I'm talking about is the recent hand
gun regulation that the City Council of Toledo has enacted. All codes,
rules and regulations are applicable to the government authorities only!
Rodrigues vs. Ray Donovan 769 F2d 1344, 1348 (1985)
The Federal Administrative Procedures Act of 1946, Title 5 USC 1011,
June 11, 1946, Ch 324, Section 12, 60 Stat 244, in the first and last
sentences, the words, "This subchapter, Chapter 7, and sections 1305,
3105, 3344, 4301(2)(E), 5362, and 7521, and provisions of section
5225(a)(B) of this title relate to hearing examiners are substituted for
'this Act' to reflect the codification of the Act of this title." The
words, " to diminish the constitutional rights of any person" are
omitted as surplus usage as there is nothing in the Act that can be
reasonably construed to diminish those rights and because A STATUTE MAY
NOT OPERATE IN DEROGATION OF THE CONSTITUTION!
If one will examine the definition of "code" in Blacks Law Dictionary,
that individual will find the following: "a systematic collection or
compendium or revision of laws, rules or regulations." To further break
down what is being said here, one needs to find the meanings of
compendium, revision of laws, rules and regulations. There is no
definition for compendium in Blacks. Webster says that it is an,
"(abridgment) A summary or abstract containing the essential information
in a brief form. There is a definition of abridgment in Blacks which it
states: "An epitome or compendium of another and larger work, wherein
the principle ideas of the larger work are summarily contained. If the
reader examines the above quote from the Federal Procedures Act of 1946,
it looks like they threw out the baby and kept the bath water! In other
words, one of the most important points made is left out in the
codifying of this statute. But lets go on with the definitions. Revision
of law has no definition in Blacks, also. There is a Revision of Statues
which says the following: "revision of law" on any subject is a
restatement of the law on that subject in a correlated or improved form
which is intended as a substitute for the law as previously stated, and
displaces and repeals former laws relating to same subject within
purview. The quotation marks on revision of law are important to
acknowledge for it means to direct the reader to an understanding that
those words are used in a special sense. Go back to the definition of
"code" because that is where it is pointing too. The fact is that codes
do not revise statutes, statutes revise statutes. Blacks 6th Edition
says this about rule: "An established standard, guide or regulation. A
principle or regulation set up by authority prescribing or directing
action or forbearance as the rules of a legislative body, of a company,
a court, public office, of the law, of ethics." Now here comes the eye
opener. The definition of "regulations" is the following:" Such as
issued by various governmental departments to carry out the intent of
law. Agencies issue regulations to guide the activity of those regulated
by the agency and their own employees and to ensure uniform application
of the law. REGULATIONS ARE NOT THE WORK OF THE LEGISLATURE AND DO NOT
HAVE THE EFFECT OF LAW IN THEORY"! One can go further on this subject
and look at the singular form of "regulation"; Blacks says this about
it: "The act of regulating, a rule or order prescribed for MANAGEMENT,
or GOVERNMENT. A regulating principle, a precept. Regulation is a rule
or order having force of law issued by executive authority of the
government. (e.g. by Federal Administrative Agency) Vileness v. Freeman
OIL 370 Pad 307, 309. "
Do I smell malfeasance and fraud being invoked upon the citizens of
Toledo? Is everyone in the geographic boundaries of the Toledo Municipal
Corporation its EMPLOYEES?! If they are, then where's my paycheck?
"Assumption and presumption are just what they are -- law not with
standing. Bailey vs. Alabama 7 Peters 219." How about this one people: "
Where the rights secured by the Constitution are involved, there can be
no rule making or legislation which would abrogate them. Maranda vs
Arizona 384, US 436, 491, 86 S.C.T. 1608. "
Now I know what Mr. City Official is going to say to take the wind out
of the sails; "We are under Home Rule in this municipality and we can
make any rule that we want." Okay, show me in the Ohio Revised Code
where Home Rule is an ability of a municipality? It is NOT. It is a form
of government that is used by a TOWNSHIP. Is the Toledo Municipal
Corporation now a Township? Do I smell malfeasance and fraud? Somebody
please help me. Better yet, go look up the definition for malfeasance
and fraud in Blacks Dictionary. This gets CONfusing! All codes, rules
and regulations are applicable to the government authorities, ONLY! Hosea
4:6 "My people are destroyed for lack of knowledge: because thou hast
rejected knowledge, I will also reject thee,..."
Yours In Freedom,
Brother Don Jaynes
Vice Chair of the Libertarian Party
Lucas and Wood County
The Republic of Ohio
Attachment (application/rtf)Law Definitions.rtf
Attachment (application/rtf)Statutory Law and Cases.rtf
Law Definitions
Malfeasance -- Evil doing, ill conduct
The doing of an act which is wholly wrongful.
An act for which there is no authority or warrant of law.
The unjust performance of some act which the party performing it has no right. Blacks
Malfeasance -- wrongful or misconduct by a public official.
Commission of an act that is positively unlawful. Webster
Misconstrue -- construe wrongly; misinterpret; misunderstand
Misconstruction - the noun of the verb misconstrue
Fraud --- An intentional perversion of truth for the purpose of
inducing another in reliance upon it to part with some valuable thing
belonging to him or to surrender a legal right. Blacks
Code -- A systematic collection, compendium or revision of laws,
rules or regulations. Blacks
Compendium -- (abridgement) A summary or abstract containing the essential
information in a brief form. Webster (no definition given in Blacks)
Abridgement -- reduction; curtailment Webster
Describes a work condensed from a larger work by omitting the less
important parts.
Abridgement -- condensation; contraction
An epitome or compendium of another and larger work, wherein the
principal ideas of the larger work are summarily contained. Blacks
...abridgement occurs when a legislative act either suppresses or
substantially interfers with free speech. Keene v Meese D.C. Cal. 619 F.
Supp. 1111, 1123
Revision of Statutes - "revision of law" on any subject is a restatement
of the law on that subject in a correlated or improved form which is
intended as a substitute for the law. As previously stated, and displaces
and repeals former laws relating to same subject within purview.
(quotation - words used in a special sense) Blacks
Rule ----- An established standard, guide or regulation.
A principle or regulation set up by authority prescribing or directing
action or forbearance as the rules of a legislative body, of a company,
a court, public office, of the law, of ethics. Blacks
Regulation -- The act of regulating, a rule or order prescribed for
management, or government. a regulating principle, a precept
Regulation is a rule or order having force of law issued by executive
authority of government (E.G. by Federal Administrative Agency)
Villines v. Freeman OKL 370 P2d 307, 309
Regulations- Such are issued by various governmental departments to
carry out the intent of law Agencies issue regulations to guide the
activity of those regulated by the agency and of their own employees
and to ensure uniform application of the law. Regulations are not the
work of the legislature and do not have the effect of law in theory.
Statutory Law and Cases
1) The Federal Administrative Procedures Act of 1946, Title 5 USC 1011,
June 11, 1946, Ch 324, Section 12, 60 Stat 244 A STATUTE MAY NOT OPERATE
IN DEROGATION OF THE CONSTITUTION.
Legislative law, Stautory Law is in fact an extension of Maritime Law.
2) The 1946 Federal Administrative Procedures Act, Title 5 USC, Section
559, in sentence 2 requires that Administrative Law to be in compliance
with and in conformity to the Constitution for the united States of
America and the Common Law with all the prohibitions, restrictions,
restraints, and limitations imposed by the enumerated bounds and
boundaries.
3) All codes, rules and regulations are applicable to the government
authorities only, not human/Creators in accordance with God's law. All
codes, rules and regulations are unconstitutional and lacking in due
process as applied to Sherwood T. Rodrigues.
Rodrigues vs Ray Donovan (US Secretary of Labor) 769 F2d 1344, 1348 (1985)
4) All laws, rules and practices which are repugnant to the Constitution
are null and void.
Marbury vs Madison 2 Branch 137, 180 (1803)
5) Where rights secured by the Constitution are involved, there can be
no rule making or legislation which would abrogate them.
Miranda vs Arizona 384, US 436, 491, 86 S.C.T. 1608
6) Assumption and presumption are just what they are -- law not with
standing.
Bailey vs Alabama 7 Peters 219
7) "... it might be correctly said that there is no such thing as a
citizen of the United States. ... A citizen of any one of the States
of the Union is held to be and called a citizen of the United States,
although technically and abstractly there is no such thing. ... If we
examine the language closely, and according to the rules of rigid
construction always applicable to delegated powers, we will find that
the power to naturalize in fact is not given to Congress, but simply
the power to establish an uniform rule.
. . . I have already shown there is no such thing, technically, as a
citizen of the United States ... a distinction both in name and
privileges is made to exist between citizens of the United States ex
vi termini, and citizens of the respective States. To the former no
privileges or immunities are granted ..."
Ex Parte Knowles, July, 1855 ``The California State Supreme Court''
opinion DELIVERED BY Justice Heydenfeldt (Murray and Bryan concurring)
A CITIZEN OF THE UNITED STATES IS THE SAME JURISTIC ARTIFICIAL DEAD ON
PAPER ``person'' AS A ``UNITED STATES CITIZEN'': THE DECISION, ``Ex Parte
Knowles'', HAS NOT BEEN OVERTURNED, ONLY NEGLECTED BY THE UNINFORMED.
EUGENE TRAYNOR, PETITIONER V. THOMAS K. TURNAGE, ADMINISTRATOR OF
VETERANS' AFFAIRS AND VETERANS' ADMINISTRATION
JAMES P. MCKELVEY, PETITIONER V. THOMAS K. TURNAGE, ADMINISTRATOR
OF VETERANS' AFFAIRS AND VETERANS' ADMINISTRATION
No. 86-622 and 86-737
In the Supreme Court of the United States
October Term, 1987
On Writs of Certiori to the United States Courts of Appeals for the
Second Circuit and the District of Columbia Circuit
Brief for the Respondents
TABLE OF CONTENTS
Opinions below
Jurisdiction
Statutory and regulatory provisions involved
Question presented
Statement
Summary of argument
Argument:
I. Section 211(a) precludes judicial review of VA decisions
on veterans' benefit claims, including decisions resting
on VA policy or regulations and decisions involving
points of law under other statutes
A. The language and legislative history of Section
211(a) demonstrate that Congress intended to have
veterans' benefits claims decided in an informal,
non-adversarial process and without judicial review
B. The legislative purpose of Section 211(a) supports
preclusion of review in these cases
II. The VA's criteria for applying the "willful
misconduct" standard of the veterans' benefits laws is
a reasonable means of implementing those laws and is
not inconsistent with the Rehabilitation Act
A. VA regulations have historically considered some
forms of alcoholism to be "willful misconduct"
barring disability pensions
B. The 1977 amendment of the G.I. Bill incorporated
the VA's existing "willful misconduct" test
C. The 1978 Rehabilitation Act amendment did not alter
the effect of the 1977 GI Bill amendment
1. The Rehabilitation Act does not prohibit
reasonable distinctions among different types of
handicaps
2. There is a reasonable basis for treating
alcoholism differently from other handicaps for
purposes of veterans' benefits programs
Conclusion
Appendix
OPINIONS BELOW
The opinion of the court of appeals in No. 86-622 (Pet. App.
1a-38a) is reported at 791 F.2d 226. The opinion of the district
court in No. 86-622 (Pet. App. 39a-82a) is reported at 606 F. Supp.
391. The opinion of the court of appeals in No. 86-737 (Pet. App.
1a-31a) is reported at 792 F.2d 194. The opinion of the district
court in No. 86-737 (Pet. App. 32a-47a) is reported at 596 F. Supp.
1317.
JURISDICTION
The judgment of the court of appeals in No. 86-622 was entered on
May 16, 1986. A petition for rehearing was denied on July 15, 1986
(Pet. App. 86a-87a). The petition for a writ of certiorari was filed
on October 14, 1986 (a Tuesday following a legal holiday), and was
granted on March 9, 1987. The jurisdiction of this Court rests on 28
U.S.C. 1254(1).
The judgment of the court of appeals in No. 86-737 was entered on
May 30, 1986. A petition for rehearing was denied on August 7, 1986
(Pet. App. 49a). The petition for a writ of certiorari was filed on
November 5, 1986, and was granted on March 9, 1987. The jurisdiction
of this Court rests on 28 U.S.C. 1254(1).
STATUTORY AND REGULATORY PROVISIONS INVOLVED
The relevant provisions of 38 U.S.C. 211(a), of Section 203 of the
G.I. Bill Improvement Act of 1977, Pub. L. No. 95-202, Tit. II, 91
Stat. 1439, 38 U.S.C. (Supp. II 1978) 1662, of 38 C.F.R. 3.301(c)(2),
and of Veterans Administration Manual M21-1, are set out at App.,
infra, 1a-2a.
QUESTIONS PRESENTED
1. Whether 38 U.S.C. 211(a) precludes judicial review of a decision
by the Veterans Administration denying a veteran's application for
educational benefits and request to extend the statutory period within
which the veteran may receive educational benefits.
2. Whether, if we assume that in these cases judicial review is not
barred, the denial of benefits violated the Rehabilitation Act, 29
U.S.C. 794.
STATEMENT
1. Congress has, for many years, enacted legislation providing
benefits to disabled veterans except where the disability resulted
from the veteran's willful misconduct. See, e.g., 38 U.S.C. 310, 410,
521 (disability pensions). The same exclusion from benefits also
applies to the program involved in this case -- educational benefits
for veterans. The educational benefits statute authorizes the payment
of benefits within ten years following the veteran's last discharge or
release from active duty; however, the strict ten-year limit on
educational benefits may be extended for those veterans who were
unable to use their benefits during that period "because of a physical
or mental disability which was not the result of * * * (their) own
willful misconduct." Pub. L. No. 95-202, Tit. II, Section 203(a)(1),
91 Stat. 1439, 38 U.S.C. 1662(a)(1).
In the cases presently before the Court, petitioners are veterans
who did not utilize the full educational benefits available to them
during their respective ten-year periods. In each case, petitioner
sought to extend his period of eligibility, contending that he was
disabled during part of the delimiting period because of alcoholism.
The Veterans Administration (VA) denied extensions to both petitioners
in accordance with its longstanding interpretation of the
circumstances in which alcoholism would be regarded as "willful
misconduct" within the meaning of the benefits statute.
The applicable VA regulation (38 C.F.R. 3.301(c)(2)) had been
promulgated in 1972, prior to the enactment of the provision for
extending the time limit within which disabled veterans could receive
educational benefits. When the regulation was issued, it was
addressed primarily to alcoholism as a basis for disability pensions
and incorporated principles set forth in a 1964 VA administrative
decision. 37 Fed. Reg. 20335-20336 (1972) (proposed regulation); 37
Fed. Reg. 24662 (1972) (final regulation). /1/ The 1964
administrative decision, drawing on VA rulings dating back to 1931,
distinguished between "primary" alcoholism and alcoholism that is
"secondary to and a manifestation of an acquired psychiatric
disorder." Administrator's Decision No. 988 (Aug. 13, 1964) (J.A. 138,
142-143). Such "secondary" alcoholism is not considered willful
misconduct (id. at 143). Nor does the 1964 VA decision regard as the
kproduct of willful misconduct any organic disorder caused by chronic
alcoholism, such as cirrhosis of the liver, gastric ulcer, peripheral
neuropathy, vitamin deficiency, or chronic brain syndrome (id. at
144). "While it is proper to hold a person responsible for the direct
and immediate results of indulgence in alcohol, it cannot be
reasonably said that he expects and wills the disease and disabilities
which sometimes appear as secondary effects" (ibid. (emphasis in
original)).
Consistently with this policy, the VA grants extensions of the
delimiting period to disabled veterans whose alcoholism is the
secondary product of a psychiatric disorder or whose alcoholism has
caused an organic disorder. The agency's policy does not permit an
extension to be granted to an alcoholic veteran who cannot show the
existence of either the specified underlying or derivative disorder.
It also does not grant an extension on account of a disability
suffered, for example, in an automobile accident by a veteran who was
driving under the influence of alcohol. Should the VA deny a
veteran's request to extend his delimiting period for receiving
educational assistance benefits, that veteran would still remain
eligible to receive a VA educational loan covering the full-time
studies the veteran was pursuing when his delimiting period ended (38
U.S.C. 1662(a)(2)(A)).
2. No. 86-622: Eugene Traynor was honorably discharged from the
Army on August 27, 1969, after serving on active duty for 18 months.
He entered college in 1977 and received veterans' education assistance
benefits until those benefits were terminated when his ten-year period
of eligibility expired on August 27, 1979. Traynor, who had used nine
and one-half of the 24 months of benefits available to him (based on
length of service), sought to have his period of eligibility for
benefits extended. He contended that he had been unable to utilize
his full benefits within ten years of discharge because he had
suffered from alcoholism for 15 years ending in 1974. Pet. App.
3a-4a.
During the administrative proceedings, Traynor asserted that the VA
regulation stating the circumstances in which alcoholism constitutes
willful misconduct is violative of the Rehabilitation Act, 29 U.S.C.
794. The Board of Veterans Appeals did not expressly adjudicate that
statutory claim, noting that it was bound by VA regulations. The
Board did, however, explain that the consistent VA policy (Pet. App.
117a) is:
that alcoholism lcan and should be considered an illness for
purposes of medical treatment and rehabilitation, and that the
simple drinking of any alcoholic beverage is not in and of
itself willful misconduct. On the other hand, if in the
consumption of alcohol for the purpose of enjoying its
intoxicating effect excessive indulgence leads to disability,
such disability will be considered the result of the person's
willful misconduct.
Noting that "Congress has never enjoyed the luxury of having
unlimited funds with which to provide for gratuitous Veterans
Administration benefits," the Board explained that historically
benefits have not been granted for a disability that results from
willful misconduct (id. at 117a-118a). The Board observed that the
veterans benefits programs have regarded alcoholism as potentially
disqualifying misconduct ever since the earliest veterans regulations
promulgated by President Roosevelt. The Board added that (id. at
118a-119a):
Since then, a distinction has been maintained between
fortuitously incurred disease or disability, for which
gratuitous Veterans Administration benefits may be afforded, and
other nonfortuitous disabilities incurred at the hands of the
claimant himself/herself. Alcoholism is not singled out for
special consideration; other disabilities may be considered the
result of willful misconduct, under appropriate circumstances.
Whether the illness i(n) question is alcoholism or some other
disability, the Veterans Administration evaluates the
circumstances of each individual in determining willful
misconduct.
Finding no error in its prior determination that the facts of this
case warranted a finding of willful misconduct, the Board denied
Traynor's request for benefits beyond his delimiting date.
Traynor then filed suit in the United States District Court for the
Southern District of New York. He alleged that the VA decision
violated the Rehabilitation Act, the Due Process Clause and the Equal
Protection component of the Fifth Amendment. The district court held
that "(s)ince (the complaint) requires us to examine constitutional
and statutory questions and not merely issues of VA policy, we
conclude, in accordance with the Supreme Court's holding in Johnson
(v. Robison, 415 U.S. 361 (1974)), that we are not precluded from
exercising our jurisdiction in this matter by 38 U.S.C. Section
211(a)." Pet. App. 58a-59a. On the merits, the district court
rejected the constitutional challenge (id. at 59a-64a), but held that
the VA decision violated the Rehabilitation Act. The court held that
alcoholism is a handicap covered by the Rehabilitation Act (id. at
69a-72a), and that the denial of benefits constitutes discrimination
against alcoholics forbidden by that Act.
The court of appeals for the Second Circuit reversed. The panel
majority held that 38 U.S.C. 211(a) bars judicial review of the
Rehabilitation Act issue. The court stated (Pet. App. 16a-17a) that
although "many veterans have in the service of our country suffered
injuries that qualify them as 'handicapped individual(s)' for purposes
of Section 504 of the (Rehabilitation Act) * * * , Congress did not
delineate any exception to section 211(a) for 'handicapped' veterans
when it passed section 504." Thus, the court explained, there is no
basis for concluding that Congress intended "to grant to 'handicapped'
veterans the judicial review traditionally denied all other veterans."
Pet. App. 17a.
Judge Kearse dissented on the jurisdictional issue. /2/ She
suggested that Section 211(a) does not bar judicial review because the
Rehabilitation Act neither provides benefits to veterans nor is it
administered by the VA (Pet. App. 32a). In addition, Judge Kearse
deemed Section 211(a) to be inapplicable because there was no decision
of the Administrator on the Rehabilitation Act issue, the Board of
Veterans Appeals having "refused, on the ground of lack of authority,
to decide whether the challenged regulations violated the
Rehabilitation Act" (Pet. App. 36a).
3. No. 86-737: Petitioner McKelvey was honorably discharged from
the Army in September 1966 after serving on active duty for three
years (Pet. App. 4a). From 1966 to 1971 he was employed as a salesman
for a surgical supply corporation (C.A. App. 65-66, 89-90). During
the next four years he was hospitalized at various times for
alcoholism and associated conditions. He received educational
benefits from the VA briefly in 1973 and 1974 (C.A. App. 76-77). When
he applied for additional benefits in 1978, more than 10 years after
his discharge, the Board of Veterans Appeals denied his request to
extend his period of eligibility and rejected his application for
benefits. The Board found, after a hearing, that there was "'no
evidence that an acquired psychiatric disease preceded (McKelvey's)
alcoholism'" (Pet. App. 5a (citation omitted)).
McKelvey filed suit in the United States District Court for the
District of Columbia. He claimed that the denial of benefits was
based on a misconstruction of the "willful misconduct" language of the
veterans benefits statute. He contended also that the VA decision
constituted discrimination against the handicapped in violation of the
Rehabilitation Act, an argument he had not presented in the
administrative proceedings.
The district court held that it had jurisdiction to consider
McKelvey's claims, stating that Section 211(a) "does not prevent
judicial review of challenges to the VA's authority to promulgate
regulations" (Pet. App. 36a). On the merits, the district court held
that the VA had properly interpreted the "willful misconduct" standard
of the veterans' benefits statute. The court noted that when Congress
enacted the educational benefits extentions, the VA interpretation of
"willful misconduct" already existed (in connection with earlier
provisions on disability compensation), and that Congress specifically
expressed an intent that the same interpretation be used (id. at 40a,
quoting S. Rep. 95-468, 95th Cong., 1st Sess. 69-70 (1977)). The
district court reached a different conclusion on the Rehabilitation
Act claim, holding that the VA interpretation constitutes
discrimination against alcoholics in violation of Section 504 (Pet.
App. 43a).
The court of appeals for the District of Columbia Circuit reversed.
The court held that while Section 211(a) does not preclude judicial
review of the Rehabilitation Act claim, petitioner's substantive
statutory claim has no merit.
The court of appeals' decision on the jurisdictional issue rests on
"the unusual, perhaps sui generis posture of this case" (Pet. App.
6a). The court focused on two particular facts: first, that a
veteran is challenging the validity of a regulation under the
Rehabilitation Act, a legal issue the Board of Veterans Appeals then
regarded itself as lacking authority to decide, and second, that the
VA had not otherwise made a determination on that issue prior to the
filing of this lawsuit /3/ (id. at 7a). Since, in the court's view,
Section 211(a) is applicable only when a claim has been "resolved by
an actual 'decision of the Administrator'" (ibid., quoting Johnson v.
Robison, 415 U.S. 361, 367 (1974)), it does not bar judicial review in
these circumstances. The court emphasized "the narrowness of our
holding" (86-737 Pet. App. 9a):
(W)e do not anticipate another occasion to review a VA order
on the basis that supports our review today. The VA has now
determined it does have authority to decide on the effect and
applicability of federal statutes other than veterans'
legislation when the agency acts on benefits claims. We
therefore expect that the VA will not again regard as outside
the arsenal of law it applies any potentially relevant
congressional enactment.
On the merits, the court concluded that the VA could reasonably
distinguish between those whose handicap was caused by their own
willful misconduct, and those who are not responsible for their
handicap. The VA's conclusion that alcoholics who cannot show an
underlying psychiatric disorder are chargeable with willful misconduct
reflects "general societal perceptions regarding personal
responsibility" (Pet. App. 12a). Moreover, since "(a)lcoholism,
unlike any other disability except drug addiction * * * , is
self-inflicted * * * (,) (i)t is therefore feasible for alcoholism, as
it is not for all other disabilities except drug addiction, to make a
generalized determination that willfulness exists unless there is
established the singular exculpation for self-infliction (psychiatric
disorder) that the agency has chosen to acknowledge" (id. at 16a).
In a separate opinion, Judge Ginsburg concurred in the court's
holding that Section 211(a) does not bar judicial review in the unique
circumstances of this case, and she dissented from the court's holding
on the merits (Pet. App. 17a).
Judge Scalia also wrote separately. He dissented from the court's
holding that Section 211(a) is not applicable, stating that the
"decision of the Administrator" which Section 211(a) immunizes from
judicial review necessarily includes all issues within the competence
of the agency to decide, "whether or not (the agency) specifically
adverts to, or is even aware of them -- just as a court necessarily
'decides' all issues logically essential to the validity of its
holding whether or not it explicitly addresses or considers them"
(Pet. App. 30a). Any other view of Section 211(a), he wrote, would
enable "the Administrator * * * to control the scope of judicial
review of his determinations by simply designating which underlying
issues he chooses not to decide" (Pet. App. 30a). Judge Scalia
concurred in the court's decision on the merits, upholding the
validity of the VA regulation.
SUMMARY OF ARGUMENT
1. Section 211(a) bars judicial review in this case. The statute
precludes review of "decisions of the Administrator on any question of
law or fact under any law administered by the (VA) providing
benefits." 38 U.S.C. 211(a). This case may be viewed as involving
either a decision denying petitioners benefits, or a decision as to
how the "willful misconduct" test of the veterans' benefits statute
applies to alcoholics in light of the Rehabilitation Act. In either
view, the case involves a "decision() of the Administrator on any
question of law or fact under any (veterans' benefits) law."
The legislative history of Section 211(a) supports this reading.
The purpose of Section 211(a) was to avoid involving the courts in
"day-to-day determination and interpretation of Veterans'
Administration policy," particularly where that policy involves
"technical considerations." Johnson v. Robison, 415 U.S. 361, 372, 373
(1974). The VA decisional process is tightly controlled by hundreds
of regulations, many of them highly detailed and technical, appearing
in nearly three hundred pages of the Code of Federal Regulations, 38
C.F.R. Pts. 3 and 4, as well as an even larger number of standards
appearing in internal manuals. If challenges to regulations were
subject to judicial review, "day-to-day determinations" involving
"technical considerations" would be routinely brought into the courts.
And many of these cases could be cast as complaints against handicap
discrimination under the Rehabilitation Act, since a "disability"
claimed to exist under the veterans' benefits law can often be
described as a "handicap" under the Rehabilitation Act. Even if only
a small percentage of administrative claims were to be litigated, a
substantial addition to the federal court docket would result; in
fiscal 1986, the Board of Veterans Appeals denied more than 28,000
claims.
2. Even if Section 211(a) were held not to bar judicial review in
these cases, petitioners' challenges to the VA decisions would have to
be rejected on their merits. The "willful misconduct" test of the
veterans' benefits law was expressly intended by Congress to cover
alcoholism and drug addiction and to endorse the VA's long-standing
interpretation (which was cited in the Senate report). This language
represents a deliberate congressional decision that these disabilities
are unique in the sense that they frequently involve significant
elements of volition. The VA regulations, by focusing the
"willfulness" inquiry on whether an underlying psychiatric disorder
exists, is a reasonable way of applying the "willful misconduct" test,
and should be upheld.
The Rehabilitation Act was not intended to alter or repeal the
specific determination by Congress in the veterans' benefits law to
treat alcoholism and drug addiction as involving significant elements
of volition. The Rehabilitation Act was not intended to forbid
differing treatment of different handicaps, particularly where
differing treatment is required by some other statute and is supported
by significant medical knowledge. Here, even those medical
authorities who label alcoholism a "disease" concede that it is a
disease that can and often does involve significant elements of
volition. Indeed, many authorities stress that the successful
treatment of an alcoholic requires that the patient assume personal
responsibility for abstaining from drink. In addition, the
authorities agree that societal attitudes -- which are reflected in
laws and regulations -- can also influence the prevalence of
alcoholism. Just as this Court has rejected the argument that the
"disease" label absolves alcoholics from criminal responsibility for
their conduct, Powell v. Texas, 392 U.S. 514 (1968), so too Congress
and the VA have reasonably decided that alcoholics should bear a
degree of personal responsibility in connection with a benefits
program.
ARGUMENT
I. SECTION 211(a) PRECLUDES JUDICIAL REVIEW OF VA DECISIONS ON
VETERANS' BENEFITS CLAIMS, INCLUDING DECISIONS RESTING ON VA POLICY OR
REGULATIONS AND DECISIONS INVOLVING POINTS OF LAW UNDER OTHER STATUTES
A. The Language and Legislative History of Section 211(a) Demonstrate
That Congress Intended To Have Veterans' Benefits Claims Decided in an
Informal, Nonadversarial Process and Without Judicial Review
Congress created the Veterans Administration in 1930 and vested in
the VA responsibility for administering the federal program for
veterans' benefits. Walters v. National Ass'n of Radiation Survivors,
473 U.S. 305, 309 (1985). In the expectation that the system for
disbursing veterans' benefits would be as "informal and nonadversarial
as possible" (id. at 323), Congress did not "contemplate the adversary
mode of dispute resolution utilized by courts in this country" (id. at
309). /4/ In accordance with that expectation, Congress also sought
to "protect the Administrator from expensive and time-consuming
litigation" by precluding judicial review of VA benefits decisions.
Rose v. Rose, No. 85-1206 (May 18, 1987), slip op. 8; 38 U.S.C.
211(a). See Walters, 473 U.S. at 307; Johnson v. Robison, 415 U.S.
361, 370 (1974). Section 211(a) sets forth the prohibition of
judicial review:
(T)he decisions of the Administrator on any question of law
or fact under any law administered by the Veterans'
Administration providing benefits for veterans and their
dependents or survivors shall be final and conclusive and no
other official or any court of the United States shall have
power or jurisdiction to review any such decision by an action
in the nature of mandamus or otherwise.
So plain and direct is this statutory proscription of judicial
review that this Court has referred to Section 211(a) as the paradigm
of the "unambiguous and comprehensive" language Congress employs when
it intends to "bar judicial review altogether" (Lindahl v. OPM, 470
U.S. 768, 779-780 & n.13 (1985)). /5/
The legislative history of Section 211(a) also strongly supports
the conclusion that Congress intended to preclude judicial review in
the circumstances of these cases. Section 211(a) was originally
enacted as Section 5 of the Economy Act of 1933, ch. 3, 48 Stat. 9
(emphasis added), which provided:
All decisions rendered by the Administrator of Veterans'
Affairs under the provisions of this title, or the regulations
issued pursuant thereto, shall be final and conclusive on all
questions of law and fact, and no other official or court of the
United States shall have jurisdiction to review by mandamuss or
otherwise any such decision.
Congress could hardly prohibit judicial review in more explicit
terms (see Briscoe v. Bell, 432 U.S. 404, 409 (1977)). The original
statutory language clearly applied to all decisions under the
veterans' benefits laws, and to all questions of law involved in those
decisions, including questions arising under other statutes. An
applicant for veterans' benefits seeks a decision under the veterans'
benefits laws; and a decision denying a claim for veterans' benefits
is a decision under the veterans' benefits laws, whether or not the
claim for benefits involves consideration of additional statutes.
There is no indication that subsequent legislative changes in
Section 211(a) were intended to change the original meaning. In 1940,
the statute was amended to preclude judicial review of "the decisions
of the Administrator of Veterans' Affairs on any question of law or
fact concerning a claim for benefits or payments under this or any
other Act administered by the Veterans' Administration." Act of Oct.
17, 1940, ch. 893, Section 11, 54 Stat. 1197 (emphasis added). The
Senate Report that accompanied this amendment emphasized what the
language of the amendment made obvious: that the statute "provides
for the finality of decisions made by the Administrator of Veterans'
Affairs on questions relating to claims under any of the laws
administered by the Veterans' Administration." S. Rep. 2198, 76th
Cong., 3d Sess. 11 (1940) (emphasis added).
Thus, under the 1940 language, as well as the original 1933
language, Congress expressed its intent to preclude judicial review of
all benefits decisions made by the VA Administrator, including
decisions that involve questions of law arising under other statutes.
After a minor amendment in 1957 not affecting the present case, /6/
the statute was amended in 1970 to preclude review of "decisions of
the Administrator on any question of law or fact under any law
administered by the (VA)." Act of Aug. 12, 1970, Pub. L. No. 91-376,
Section 8(a), 84 Stat. 790, codified at 38 U.S.C. 211(a). The 1970
amendment represented Congress's response to several decisions by the
United States Court of Appeals for the District of Columbia Circuit
that had construed the preclusion of judicial review too narrowly.
As this Court explained in Johnson v. Robison, 415 U.S. 361, 371,
373 (1974) (emphasis in original), the 1970 amendment was designed to
restore the provision to its original unqualified meaning:
Before (the 1970) amendment, the no-review clause made final
"the decisions of the administrator on any question of law or
fact concerning a claim for benefits or payments under (certain)
law(s) administered by the Veterans' Administration" (emphasis
added), 38 U.S.C. Section 211(a) (1964 ed.), 71 Stat. 92. In a
series of decisions, e.g., Wellman v. Whittier, 104 U.S. App.
D.C. 6, 259 F.2d 163 (1958); Thompson v. Gleason, 115 U.S. App.
D.C. 201, 317 F.2d 901 (1962); and Tracy v. Gleason, 126 U.S.
App. D.C. 415, 379 F.2d 469 (1967), the Court of Appeals for the
District of Columbia Circuit interpreted the term "claim" as a
limitation upon the reach of Section 211(a), and as a
consequence held that judicial review of actions by the
administrator subsequent to an original grant of benefits was
not barred.
* * * * *
Thus, the 1970 amendment was enacted to overrule the
interpretation of the Court of Appeals for the District of
Columbia Circuit * * *. /7/
The Chairman of the House Committee on Veterans' Affairs argued
that the District of Columbia Circuit's decisions gave "preferential
treatment to a limited group of beneficiaries" by providing to them,
and them alone, judicial review of VA benefits determinations. 116
Cong. Rec. 26490 (1970) (remarks of Congressman Teague). He
recognized that such preferential treatment could be avoided either by
making "court review * * * apply to all beneficiaries with equal
force" or by making all VA benefits decisions nonreviewable (ibid.).
In the 1970 amendment Congress sought to restore uniformity to the
benefits process by opting for the latter approach. Chairman Teague
explained that the statute "would seem to be perfectly clear in
expressing the congressional intent that any and all decisions of the
Administrator on questions of entitlement to veterans' benefits --
(with the exception of claims on insurance contracts) -- were to be
final and not subject to judicial review." 116 Cong. Rec. 19734
(1970).
In sum, the history of Section 211(a) demonstrates that prior to
the 1970 amendment, the statutory preclusion of review plainly applied
to all decisions of the Administrator under the veterans' benefits
laws, even where questions of law were raised under other statutes.
The 1970 amendment was not intended to change this result; instead,
it was designed to reaffirm the original meaning by overruling a
series of judicial decisions that Congress viewed as erroneously
narrowing the statute.
B. The Legislative Purpose of Section 211(a) Supports Preclusion of
Review in These Cases
This Court recently observed that the principal purposes of Section
211(a) are "to achieve uniformity in the administration of veterans'
benefits and protect the Administrator from expensive and
time-consuming litigation" (Rose v. Rose, No. 85-1206 (May 18, 1987),
slip op. 8). Cognizant of these purposes, the Court has stated that
Congress sought to avoid "involv(ing) the courts in day-to-day
determination and interpretation of Veterans' Administration policy,"
particularly where that policy involves "technical considerations."
Johnson v. Robison, 415 U.S. at 372, 373. /8/ These legislative
purposes would plainly be advanced by precluding judicial review in
these cases. Despite petitioners' efforts to portray this litigation
as something other than a challenge to the VA's benefits decisions in
their particular cases, each petitioner's complaint focuses on the
circumstances of his individual benefits determination and each
complaint requests the court to "(g)rant (petitioner's) appliction for
an extension of his delimiting date" (J.A. 31; see id. at 129). Thus
petitioners plainly seek to involve the courts in the "day-to-day
determination and interpretation" of VA policy, a result that is
directly contrary to Congress's objective.
Petitioners offer three arguments in favor of creating an exception
to Section 211(a) in these cases: that lawsuits challenging the
legality of a policy or regulation should be permitted even if
judicial review of individual benefit determinations is barred; that
these cases involve decisions under the Rehabilitation Act rather than
under a veterans' benefits statute; and that in these cases the VA
did not conclusively decide the question arising under the
Rehabilitation Act, so there is no "decision" to trigger the
preclusion of review under Section 211(a). We address each contention
in turn.
1. Petitioners' first theory would mean, at a minimum, that the
VA's regulations as well as its manuals would be open to judicial
review. /9/ The courts would then face precisely the dangers that
Congress sought to avoid, because these regulations and manuals are
filled with detailed, technical provisions, prescribing in elaborate
detail how veterans' benefits claims are to be decided.
The VA regulations comprise 272 pages in the 1986 edition of the
Code of Federal Regulations (38 C.F.R. Pts. 3 and 4, at 126-398) and
include detailed provisions on difficult and controversial subjects.
For example, 11 pages address the question whether a disability is
service-connected (38 C.F.R. 3.303-3.312), with detailed provisions
relating to claims based on exposure to herbicides in Vietnam and
exposure to ionizing radiation (38 C.F.R. 3.311a, 3.311b). /10/ Part
4 has 95 pages elaborating on the rating of particular conditions,
including 11 pages on neurological, convulsive and mental disorders
(38 C.F.R. 4.120-4.132), as well as other provisions on impairment of
the musculoskeletal system (38 C.F.R. 4.40-4.73 -- 25 pages), visual
impairment (38 C.F.R. 4.75-4.84a -- 8 pages), auditory impairment (38
C.F.R. 4.85-4.87a -- 4 pages), cardiovascular diseases (38 C.F.R.
4.100-4.104 -- 4 pages), and mental disorders (38 C.F.R. 4.125-4.132
-- 5 pages).
The Code of Federal Regulations represents only the beginning of
potentially litigable issues concerning veterans' disability claims
should Section 211(a) be construed to have an implicit exception for
VA regulations and policies. An even greater volume of policy
pronouncements exists in manuals that amplify the rules set forth in
the Code of Federal Regulations. These manuals constitute
"instructions of the Administrator" that are binding on the Board of
Veterans Appeals under 38 U.S.C. 4004. Under petitioners'
construction of Section 211(a), the VA manuals would be subject to
judicial review. See Pet. Br. 38-39.
For example, the VA regulation on alcoholism that is contained in
the Code of Federal Regulations does not discuss the relationship
between alcoholism and psychiatric disorders; for guidance on this
topic, one must turn to the VA Manual M21-1, ch. 50, Section
50.40a.(1) (entitled Rating Procedure Relative to Specific Issues),
Subchapter XII (entitled Mental Disorders). The VA Manual M21-1,
which prescribes policies for disability adjudications, has 56
chapters. Of these, at least 25 chapters contain provisions that are
potential targets of litigation. In addition, another VA Manual M22-2
governs adjudication of claims for educational benefits; Parts II,
III and IV of Manual M22-2, which deal with substantive issues arising
in educational benefits claims, contain 31 chapters with detailed
provisions that are potential targets of litigation.
With this volume of regulatory material waiting in the wings, it is
apparent that the suggestion that judicial review be permitted for
challenges to regulations and policies would profoundly distort the
informal, nonadversarial scheme Congress envisioned. /11/
Petitioners' reading of Section 211(a) finds no support either in
the statutory language or in any conceivable view of the legislative
intent. The language of the statute precludes review of "decisions of
the Administrator on any question of law." The statute does not, as
petitioners would have it, limit preclusion of review to "decisions of
the Administrator on any question of law (except for decisions
embodied in a regulation or manual)."
Nor is there any reason to suppose that Congress intended to except
from the statutory bar on judicial review those decisions of law that
are embodied in VA regulations. Such an exception would serve no
discernible congressional purpose. The VA, like most administrative
agencies, is free to develop substantive standards under its governing
statute either by regulation, by case-by-case adjudication, or by a
combination of the two. NAACP v. FPC, 425 U.S. 662, 668 (1976); SEC
v. Chenery Corp., 332 U.S. 194, 202-203 (1947). While there may be
instances in which reliance on adjudication rather than rulemaking
would be an abuse of discretion, NLRB v. Bell Aerospace Co., 416 U.S.
267, 294 (1974), certainly in applying the "willful misconduct"
standard of the veterans' benefits statute -- as well as the
antidiscrimination provision of the Rehabilitation Act -- the VA has
discretion to develop standards through the process of case-by-case
adjudication rather than by regulation. In fact, the VA's
interpretation of the statutory "willful misconduct" standard as
applied to alcoholism originated in decisions on specific benefit
claims (see page 3, supra; pages 28-29, infra).
Under petitioners' interpretation, the federal courts could review
a policy or legal standard announced in a regulation, but not in an
individual decision on a claim for benefits. But they offer no cogent
reason why Congress would create -- and no evidence that Congress
intended to create -- a system barring judicial review where an
interpretation is adopted in an adjudicative context (with no prior
notice to the general public and with retroactive effect on the
parties), but allowing judicial review if the same interpretation were
adopted prospectively after public notice and comment. If
petitioners' theory were the law, then the agency would have a strong
incentive to maintain uniformity in its decisions and minimize its
litigation costs by developing standards and policies through
case-by-case administrative adjudication rather than regulation,
thereby depriving the public of the advantages of the public notice
and comment involved in rulemaking proceedings. Congress could not
have intended such a bizarre result. /12/
2. Petitioners' second contention is that judicial review is not
barred in these cases because the VA's decisions were made under the
Rehabilitation Act rather than under a veterans' benefits statute.
This is the theory espoused in Judge Kearse's dissenting opinion
(86-622 Pet. App. 25a-38a). On this view, Section 211(a) would be
limited to instances in which the Administrator's decision was made
exclusively under a veterans' benefits statute and involved no
consideration of other statutes. Petitioners' theory does not flow
naturally or comfortably from the language of Section 211(a). The VA
decisions denying additional benefits to petitioners and denying
petitioners' requests to extend their delimiting dates are, by any
standard, decisions under a "law administered by the Veterans'
Administration providing benefits." That the VA may have been asked by
petitioner McKelvey (though not by petitioner Traynor) to consider the
effect of the Rehabilitation Act on his claim under the educational
benefits program does not cause the agency's decision to cease being a
decision under a veterans' benefits law. It is that law, rather than
the Rehabilitation Act, that authorizes the benefits being sought.
And, as the legislative history shows (see pages 13-16, supra),
Congress viewed Section 211(a) as barring review of all decisions of
the Administrator implementing a veterans benefits program --
regardless of whether those decisions arguably required the
administrator to consider additional statutes, such as the
Administrative Procedure Act, 5 U.S.C. 706(2)(A) and (E), or the
Rehabilitation Act.
Indeed, it is difficult to conceive of a case in which a veteran
claiming a "disability" under a veterans' benefits statute could not
also claim a "handicap" under the Rehabilitation Act. The predictable
consequence of a rule allowing judicial review for veterans claiming
Rehabilitation Act protection is that such claims would routinely be
recited in lawsuits challenging VA benefits decisions. The result
would be to involve the courts in "day-to-day determination and
interpretation of Veterans' Administration policy" (Johnson v.
Robison, 415 U.S. at 372) -- the very result Section 211(a) was
intended to preclude.
3. Petitioners' third theory for avoiding the jurisdictional bar of
Section 211(a) is that the statute does not apply here because the VA
did not expressly "decide" the question whether the agency's
regulation on alcoholism violated the Rehabilitation Act.
Petitioners' theory is incompatible with established principles of
administrative law.
Even in cases where judicial review of agency action is available,
courts employ the exhaustion doctrine in order to insure that the
agency has had an opportunity to address the legal questions
presented. Among the salutary effects of the exhaustion doctrine are
that the agency decision may dispose of the matter in a fashion that
makes further review unnecessary and that, should judicial proceedings
ensue, the court will have the benefit of the agency's views.
Weinberger v. Salfi, 422 U.S. 749, 765 (1975); McKart v. United
States, 395 U.S. 185, 200 (1969); cf. Bowen v. City of New York, No.
84-1923 (June 2, 1986), slip op. 16-17.
Petitioners' tortured reading of Section 211(a) proceeds from just
the opposite premise. Under their theory, judicial review would exist
only where a court does not have the benefit of the agency's view on
the subject, viz., only on those questions of law raised in the
administrative proceedings which the Administrator did not expressly
"decide." /13/ Conversely, it is only by "deciding" an issue that the
Administrator could trigger the statutory proscription of judicial
review. There is no evidence that Congress intended to make the
jurisdiction of the federal courts hinge on the absence of an agency's
statement of its views on a particular question of law. Nor is there
any reason to believe that Congress would have crafted the peculiar
system petitioners posit: a system that discourages parties from
raising legal issues in agency proceedings (in order to preserve
judicial "review") and simultaneously encourages the agency to express
views on issues that otherwise would not be reached (in order to
preserve the finality of agency adjudication and to defeat judicial
review). See 86-737 Pet. App. 30a (Scalia, J., dissenting).
II. THE VA'S CRITERIA FOR APPLYING THE "WILLFUL MISCONDUCT" STANDARD
OF THE VETERANS' BENEFITS LAWS IS A REASONABLE MEANS OF IMPLEMENTING
THOSE LAWS AND IS NOT INCONSISTENT WITH THE REHABILITATION ACT
Because the courts lack jurisdiction in these cases, it is
unnecessary for this Court to consider petitioners' contention that
the challenged VA regulation and the VA's denials of benefits on these
cases are violative of the Rehabilitation Act. However, should this
Court determine that the jurisdictional issue is not dispositive, the
decisions below should be affirmed on the alternative ground that
petitioners' Rehabilitation Act claims are without merit.
In challenging the VA's policy on alcoholism, petitioners and amici
curiae raise a subject that has long bedeviled scholars in a variety
of disciplines: the crafting of a normative cultural view on alcohol
and alcoholism. The striking disagreements the subject provokes are
reflected in the various descriptions of alcohol as "a valuable food
and commodity, a 'gift of God'" (Blume, Public Policy Issues, in
Alcoholism and Related Problems: Issues For The American Public 179
(1984)) and as the "verray sepulture (o)f mannes wit and his
discrecioun" (G. Chaucer, The Canterbury Tales (The Pardoner's Tale)
in Chaucer's Poetry 314 (E. Donaldson ed. 1958).
The complexities of the subject are magnified in these cases by the
effort to frame the legal issues within the nomenclature of medicine.
The briefs of petitioners and their supporting amici appear to proceed
from the assumption that the dispositive issue in the case is whether
alcoholism is a disease and, in urging reversal, rely on recent
medical literature to support the proposition that it is. But the
issue in these cases is not a medical issue, it is the legal issue of
determining Congress's intent in enacting the relevant statutes. /14/
It is thus of little consequence to the legal analysis whether
alcoholism is or is not a disease because that term does not foreclose
the possibility of voluntary conduct; nor is the search for the
congressional inteent underlying statutes enacted in the late 1970's
advanced by citations to the medical literature circa 1987. In any
event, as we will discuss, despite substantial recent medical progress
in the undestanding of alcoholism, the observations in this Court's
plurality opinion in Powell v. Texas, 392 U.S. at 522 (footnote
omitted; emphasis in original) retain their validity:
the inescapable fact is that there is no agreement among
members of the medical profession about what it means to say
that "alcoholism" is a "disease." One of the principal works in
the field * * * concludes that "a disease is what the medical
profession recognizes as such." In other words, there is
widespread agreement today that "alcoholism" is a "disease" for
the simple reason that the medical profession has concluded that
it should attempt to treat those who have drinking problems.
There the agreement stops. /15/
We therefore focus our analysis of the statutory issues in these
cases on the language Congress adopted and its programmatic context,
the legislative history, and the longstanding agency interpretation.
A. VA Regulations Have Historically Considered Some Forms of
Alcoholism to be "Willful Misconduct" Barring Disability Pensions
For many years, disability compensation for veterans has been
subject to a statutory bar where "the disability is the result of the
veteran's own willful misconduct." 38 U.S.C. 310 (disability
compensation for injuries suffered or diseases contracted in line of
duty). See also 38 U.S.C. 410 (survivors' benefits); 38 U.S.C. 521
(compensation for non-service connected disabilities). /16/ Over the
decades in which disability benefits programs for veterans have been
administered, the definition of "willful misconduct" has achieved
general acceptance in many specific applications, including its
application to alcoholism. The VA first had occasion to consider the
"willful misconduct" standard in relation to the consumption of
alcoholic beverages in an administrative decision in 1931
(Administrator's Decision No. 2 (Mar. 21, 1931) (J.A. 133-137)). In
that case, the Administrator granted compensation to veterans who had
been paralyzed from drinking "jamaica ginger," on the ground that the
substance they drank was not known to be poisonous. In dictum,
however, the Administrator stated that "if in the drinking of any
beverage for the purpose of enjoying its intoxicating effects,
excessive indulgence leads to disability, willful misconduct would
undoubtedly inhere in the act" (id. at 136). This dictum was later
incorporated in a regulation and manual, which stated the test to be:
"Was there excessive indulgence and was it the proximate cause of the
injury or disease in question" (id. at 139-140).
In 1964 the VA clarified its policy on alcoholism in two
significant respects. Taken together these clarifications showed that
the willful misconduct standard did not disqualify all alcoholics from
receiving benefits and that large categories of persons disabled by
alcoholism were expressly permitted to obtain benefits. The
Administrator announced these policy modifications in an
administrative decision (Administrator's Decision No. 988 (Aug. 13,
1964) (J.A. 138-146). First, the Administrator drew a dictinction
between primary alcoholism and alcoholism "secondary to and a
manifestation of an acquired psychiatric disorder" and held that the
latter condition, secondary alcoholism, is not to be considered as
willful misconduct (id. at 143). /17/ The Administrator's 1964
decision also removed the "willful misconduct" label from those
alcoholics, both primary and secondary, whose conditions had produced
derivative disabling effects, including "cirrhosis of the liver to
gastric ulcer, peripheral neuropathy, vitamin deficiency, chronic
brain syndrome or simply acceleration of debility of age" (id. at
144).
In 1972, the VA issued its present regulation. Drawing upon the
language of the 1931 "jamaica ginger" decision, it states (38 C.F.R.
3.301(c0(2)):
If, in the drinking of a beverage to enjoy its intoxicating
effects, intoxication results approximately and immediately in
disability or death, the disability or death will be considered
the result of the person's willful misconduct.
In issuing the regulation, the VA announced that it was intended to
incorporate the principles of the 1964 administrative decision. 37
Fed. Reg. 20335, 20336 (1972) (proposed regulation); 37 Fed. Reg.
24662 (1972) (final regulation). Consequently, the VA Manual
incorporates the 1964 decision, stating that alcoholism is not a
compensable disability unless it is "secondary to and a manifestation
of a psychotic, psychoneurotic or psychophysiologic disorder," in
which case the rating official is to "consider the alcoholism part and
parcel of the disability and rate as one disease entity, e.g.,
schizophrenia with alcoholism." VA Manual M21-1, ch. 50, Subchapter
XII (see S. Zimberg, supra, at 41). Thus, by 1977, when Congress
enacted the provision extending for disabled veterans the ten-year
limitation on educational benefits, the "willful misconduct" exclusion
had a long history and an established administrative interpretation.
B. The 1977 Amendment of the G.I. Bill Incorporated the VA's Existing
"Willful Misconduct" Test
Since the 1940's the VA has granted educational assistance to
eligible veterans. Congress added the ten-year delimiting period in
1974 (Pub. L. No. 93-337, Section 1(1), 88 Stat. 292). In 1977,
Congress amended the statute to provide for the first time for
extensions of the delimiting period for veterans who were prevented
from initiating or completing their education "because of a physical
or mental disability which was not the result of such veteran's own
willful misconduct." Pub. L. No. 95-202, Title II, Section 203(a)(1),
91 Stat. 1439, 38 U.S.C. 1662)(a)(1).
The legislative history of the 1977 amendment shows that in
choosing the term "willful misconduct" Congress was aware that it was
requiring the same test that was already in the statute as a bar to
disability pensions, and that Congress intended to adopt the
interpretation the VA had already given to that term in the disability
pension context. The report of the Senate Veterans' Affairs Committee
makes explicit the legislative awareness of and acquiescence in the VA
interpretation of "willful misconduct." The Senate Report states that
"(i)n determining whether the disability sustained was a result of the
veteran's own 'willful misconduct', the Committee intends that the
same standards be applied as are utilized in determining eligibility
for other VA programs under title 38. In this connection, see 38 CFR
part III, paragraphs 3.1(n) and 3.301 (the "willful misconduct"
regulation), and VA Manual M21-1, section 1404." /18/ S. Rep. 95-468,
95th Cong., 1st Sess. 69-70 (1977). This Court has often stated that
committee reports "contain the authoritative source for finding the
Legislative intent" and "represen(t) the considered and collective
understanding of those Congressmen involved in drafting and studying
proposed legislation" (Garcia v. United States, 469 U.S. 76, 76
(1984), quoting Zuber v. Allen, 396 U.S. 168, 186 (1969)).
The legislative history of the 1977 amendment thus confirms the
conclusion otherwise indicated by settled principles of statutory
construction: that Congress's use of the term should be given the
same meaning in all applications. See Morrison-Knudsen Construction
Co. v. Director, OWCP, 461 U.S. 624, 633 (1983); Bob Jones University
v. United States, 461 U.S. 574, 586-587 & n.10 (1983); Sedima,
S.P.R.L. v. Imrex Co., 473 U.S. 479, 489 (1985). The conclusion that
Congress chose to have the VA apply the same test in the same manner
to both disability pensions and education benefits is well-supported
by the factors this Court ordinarily employs in assessing whether an
administrative interpretation is faithful to legislative intent. As
this Court observed in an analogous context in Alcoa v. Central
Lincoln Peoples' Utility District, 467 U.S. 380, 390 (1984): "(t)he
subject under regulation is technical and complex. (The agency) has
longstanding expertise in the area, and was intimately involved in the
drafting and consideration of the statute by Congress. Following
enactment of the statute the agency immediately interpreted the
statute in the manner now under challenge." Moreover, the
Administrator, whose interpretation is entitled to considerable
deference, has consistently and prominently interpreted the term
"willful misconduct" with regard to alcoholism both before and after
passage of the 1977 amendment; Congress was aware of the
Administrator's interpretation and therefore should, at the very
least, be viewed as having implicitly approved that interpretation
when it employed the same term in the 1977 amendment (City of Pleasant
Grove v. United States, No. 85-1244 (Jan. 21, 1987), slip op. 5-6;
United States v. Sheffield Bd. of Comm'rs, 435 U.S. 110, 131-135
(1978)). In fact, Congress's approval is explicitly stated in the
Senate report. It is, accordingly, clear that in 1977, when Congress
enacted the extension of the delimiting period for disabled veterans
whose disability was not caused by willful misconduct, Congress
understood precisely how that language would be interpreted in cases
where the claimed disability is alcoholism.
C. The 1978 Rehabilitation Act Amendment did not Alter the Effect of
the 1977 G.I. Bill Amendment
Despite the clarity of the situation in 1977, petitioners and amici
supporting them contend that subsequent events have overtaken
Congress's explicit approval of the relevant VA regulation. Although
cast in different forms, petitioners' principal argument is that
amendments to the Rehabilitation Act in 1978 effectively nullified the
VA regulation. Thus, petitioners contend that alcoholism should be
regarded as a disease, that the conduct of drinking is inseparable
from the disease itself, and therefore that the Rehabilitation Act
prohibits the VA from concluding that an alcoholic's drinking can ever
have a volitional component. /19/ Under this argument, an alcoholic
veteran who had been disabled by drinking during the statutory period
is ipso facto entitled to an extension of the delimiting period for
educational benefits. /20/ Since the same "willful misconduct"
standard applies also to the grant of veterans' disability pensions,
acceptance of petitioners' argument would lend credence to the quite
surprising notion that the government is obligated to pay disability
pensions to all persons claiming to suffer from alcoholism.
Petitioners' argument is seriously flawed. As we now discuss, the
1978 amendments to the Rehabilitation Act did not repeal the recent
congressional judgment that extensions of the delimiting period would
be unavailable to persons who bear some responsibility for their
disabilities. Nor does the Rehabilitation Act prevent the government
from making reasonable distinctions among types of handicaps.
Before we turn to that discussion, some further context for the
issues is useful. We have said that the issue in this case is not
whether alcoholism is a disease, nor is there an issue whether
alcoholism is a handicap cognizable under the Rehabilitation Act (see
43 Op. Att'y Gen. 12 (1977)). For, elven if it is a disease, it would
not necessarily follow that all alcoholics are disabled. The statute
requires that a veteran suffer from a disability in order to qualify
for an extension of his delimiting period. Moreover, even if one
accepts the disease conception of alcoholism and considers only those
veterans whose alcoholism is disabling, that would not necessarily
preclude scrutiny of the veteran's conduct or his volition as a
contributing cause of his disability. Alcoholism, like drug
addiction, may well be a disease as petitioners argue; but, as even
the medical authorities cited by amici recognize, alcoholism "cannot
be reified but reflects a collection of various symptoms and episodic
behaviors that collectively make up perhaps as many alcoholisms as
there are alcohol abusers" (G. Vaillant, The Natural History of
Alcoholism 3 (1983)). In short, alcoholism is not a unitary
condition. Substance abuse, particularly alcoholism, has multiple
forms and ranges of severity, /21/ and is acknowledged to be unlike
other diseases in the sense that it frequently involves a significant
volitional element, in both its genesis and its treatment. /22/ As we
show, it is reasonable in the context of this particular disease,
unlike other diseases, for the VA to draw a distinction based on a
showing of an underlying psychological disorder or disabling
derivative effects; it is a distinction that is paralleled in the
medical literature and that faithfully implements Congress's decision
not to permit extensions of the delimiting period (or disability
pensions) for veterans whose disabilities were caused by willful
misconduct. Although the VA policy may not be expressed in precisely
the terms medical science would use, and although the policy may not
produce in an individual case the same conclusion another arbiter
might reach, the VA policy provides a reasonable and workable
accommodation of modern medico-psychological evidence and Congress's
instructions in the veterans' benefits statute. Perhaps, as medical
science makes further advances, some modification of the statutory
standard will be indicated; but that is a judgment to be made by
Congress, not by the courts.
1. The Rehabilitation Act does not prohibit reasonable distinctions
among different types of handicaps
When first enacted in 1973, the Rehabilitation Act's bar on
discrimination against handicapped persons did not apply to federal
government programs; it was limited to federally-funded programs and
activities. Pub. L. No. 93-112, Tit. V, Section 504, 87 Stat. 394.
The original statutory definition of a handicapped individual was a
person who has a physical or mental disability that results in a
substantial handicap to employment (Pub. L. No. 93-112, Section 7(6),
87 Stat. 361). Congress expanded that definition in 1974 to include,
for purposes of Section 504, a person who has a physical or mental
impairment which substantially limits one or more major life
activities, has a record of such impairment, or is regarded as having
such impairment. Pub. L. No. 93-516, Tit. I, Section 11(a), 88 Stat.
1619. In the Rehabilitation, Comprehensive Services, and
Developmental Disabilities Amendments of 1978 (Pub. L. No. 95-602,
Tit. I, 92 Stat. 2955), Congress further amended the Rehabilitation
Act in two ways that are significant to this case.
Section 504 was amended to prohibit discrimination "under any
program or activity conducted by any Executive agency or by the United
States Postal Service," and required the heads of those agencies to
promulgate regulations prohibiting discrimination against handicapped
persons (Pub. L. No. 95-602, Tit. I, Sections 119, 122(d)(2), 92 Stat.
2982, 2987, 29 U.S.C. 794). Congress also amended the definition of
"handicapped person" to state that for purposes of Section 504, in the
employment context, the term "does not include any individual who is
an alcoholic or drug abuser whose current use of alcohol or drugs
prevents such individual from performing the duties of the job in
question or whose employment, by reason of such current alcohol or
drug abuse, would constitute a direct threat to property or the safety
of others" (Pub. L. No. 95-602, Tit. 1, Section 122(a)(6), 92 Stat.
2985, 29 U.S.C. 706(7)(B)).
Petitioners' principal contention is that the 1978 amendments to
the Rehabilitation Act invalidated the VA regulation concerning
alcoholism. Since Congress had expressly approved that VA regulation
in 1977, petitioners' argument is reduced to the proposition that the
Rehabilitation Act amendments implicitly repealed the 1977 VA Benefits
Law amendments. /23/ The short answer to petitioners' argument is, as
this Court has stated repeatedly, that a subsequent statute will not
be held to repeal an earlier statute by implication, especially where
the later enactment is general and the earlier statute is specific.
Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976); Morton v.
Mancari, 417 U.S. 535, 550-551 (1974); Silver v. NYSE, 373 U.S. 341,
357 (1963); Posadas v. National City Bank, 296 U.S. 497, 503 (1936);
Wood v. United States, 41 U.S. (16 Pet.) 342, 363 (1842).
Moreover, there are strong indications that Congress regarded the
1977 G.I. Bill amendment and the VA regulation as retaining their full
force notwithstanding the 1978 Rehabilitation Act amendment. In 1979,
the Senate Committee on Veterans' Affairs revisited the VA's
interpretation of the "willful misconduct" test for extensions of the
delimiting period as that test applied to alcohol or drug dependence
disabilities. Although, upon reexamination, the Committee preferred
to have the VA grant a "delimiting period extension when the veteran
was prevented, during part of all of the ordinary 10-year delimiting
period, from using GI Bill benefits by a drug or alcohol disability
and the veteran has recovered from the disability," the Committee
recognized that new legislation would be needed to effect that result
since the VA's contrary interpretation had been expressly endorsed in
the Senate Report accompanying the 1977 amendment. S. Rep. 96-314,
96th Cong., 1st Sess. 25 (1979). Accordingly, the Committee concluded
that "in light of the legislative history (of the 1977 amendments),
the VA has had little choice but to deny such extensions involving
alcohol and drug abuse or addiction disabilities" (ibid.). On four
occasions between 1979 and 1984 the Senate passed bills containing
amendments that would have eliminated the "willful misconduct" test
for VA educational benefits extensions (while retaining the test for
VA disability benefits), but none of the bills passed the House. See
S. Rep. 98-604, 98th Cong., 2d Sess. 38-39 (1984) (summarizing
legislative history). There is not the slightest suggestion in the
legislative history that, as petitioners' theory assumes, modification
of the G.I. Bill was regarded as unnecessary in light of the
Rehabilitation Act's 1978 amendments. Rather, "despite the (Senate)
Committee's strongest urgings, the House would accept neither the GI
Bill nor the rehabilitation program provision for delimiting-period
extensions based on drug or alcohol disabilities" (id. at 39); see
126 Cong. Rec. 27578 (1980) (remarks of Senator Cranston, Chairman,
Committee on Veterans' Affairs) ("the House was adamant in its refusal
to accept this provision"). If, as petitioners urge, the
Rehabilitation Act amendments invalidated the VA regulation on
alcoholism or superseded that regulation with respect to the
educational benefits delimiting-period extension, that fact seems to
have eluded Congress.
The various refinements of petitioners' theory are similarly
flawed. Petitioners contend, for example, that the Rehabilitation Act
proscribes distinctions among different types of handicaps and that
the VA runs afoul of that standard by imposing only on veterans
disabled by alcoholism (and drug dependence) the burden of proving
that their disability was not the result of willful misconduct. The
range of handicaps covered by the Rehabilitation Act is extensive,
including a wide variety of conditions from mental illness, alcoholism
and drug addiction, to all types of serious physical afflictions.
/24/ Obviously, different handicaps present different problems; no
one would contend, for example, that a blind person and a paralyzed
person must be treated in identical fashion. The Rehabilitation Act's
general prohibition of discrimination against handicapped persons has
never been construed to preclude government agencies from recognizing
the differences among handicaps in determining how best to deal with
them. /25/ In each case, the nature of the particular handicap must
be considered in determining what is required by the Act. See
Southeastern Community College v. Davis, 442 U.S. 397 (1979) (deaf
applicant for nursing school); Doe v. New York University, 666 F.2d
761 (2d Cir. 1981) (medical school applicant with history of mental
illness).
These considerations are particularly relevant where the differing
treatment of a particular handicap is required by statute. HEW's
implementing regulations under the Rehabilitation Act of 1973
(applying to federally-funded programs) provide that "exclusion of a
specific class of handicapped persons from a program limited by
Federal statute or executive order to a different class of handicapped
persons" is not prohibited by the Act. 42 Fed. Reg. 22676, 22679
(1977), promulgating 45 C.F.R. 84.4(c); see 28 C.F.R. 41.51(c) (HEW
coordinating regulation for federally-assisted programs), 28 C.F.R.
Pt. 39 (Department of Justice regulations), 38 C.F.R. 18.404(c) (VA
regulation for federally-assisted programs), 52 Fed. Reg. 25124 (1987)
(VA notice of proposed regulation for federally-conducted programs).
This Court has "recognized (the HEW) regulations as an important
source of guidance on the meaning of section 504." Alexander v.
Choate, 469 U.S. 287, 304 n.24 (1985); School Bd. of Nassau County v.
Arline, No. 85-1277 (Mar. 3, 1987), slip op. 5; Consolidated Rail
Corp. v. Darrone, 465 U.S. 624 (1984); Southeastern Community College
v. Davis, 442 U.S. 397, 413 (1979).
The HEW regulation is persuasive authority here. In the 1977 G.I.
Bill amendment, Congress allowed handicapped persons to utilize
educational benefits beyond ten years following their discharge, but
restricted this special allowance to cases involving "willful
misconduct." /26/ In doing so, Congress obviously focused on
alcoholism and drug addiction, as evidenced not only by the Senate
report's citation and approval of the VA's regulation (discussed at
pages 30-31 supra), but its use of the same language that had already
been interpreted in the context of disability pensions to include
alcoholism and drug addiction. Thus, in 1977 Congress mandated
separate treatment of drug and alcohol addiction under a "willful
misconduct" standard; the HEW regulation and subsequent implementing
regulations by other agencies properly recognize that it was never the
intent of the Rehabilitation Act to alter existing statutes requiring
separate treatment of different handicaps.
2. There is a reasonable basis for treating alcoholism differently
from other handicaps for purposes of veterans' benefits programs
As we have explained, Congress directed the VA to apply the same
"willful misconduct" standard to applicants for educational benefits
extensions as to applicants for disability pensions. In assessing the
reasonableness of the VA's interpretation of "willful misconduct," it
is therefore necessary to consider the consequences of that
interpretation in both contexts, yet petitioners do not explain how
the Rehabilitation Act would require a change in the VA regulation
interpreting the willful misconduct standard when that standard is
applied to the educational benefits program but not when it is applied
to disability pensions. /27/
Congress has clearly stated the reasons for its reluctance to grant
disability pensions to alcoholics or drug addicts (S. Rep. 96-314,
supra, at 25-26):
In the context of (the disability compensation) program, the
rate and duration of benefits depend directly upon the severity
and duration of the disability. Thus, an individual receiving
benefits under that program for alcoholism or drug addiction
would have a strong financial incentive -- in the form of a
higher rate of compensation or the continuation of receipt of
compensation -- in the worsening or prolongation of the
disability, both of which are to some extent within his or her
control because they depend upon the amount, frequency, and
duration of his or her consumption of alcoholic beverages or
drugs.
One may differ, as a matter of policy, on the question whether
extensions of the ten-year limitation on educational benefits for
alcoholic veterans should be measured by the same standard as
disability pensions. In its several recent efforts to enact
legislation repealing the "willful misconduct" bar to educational
benefits extensions while retaining it for disability pensions, the
Senate Committee on Veterans' Affairs has urged that a different
standard be used for each program on the ground that educational
benefits cases involve recovered alcoholics who should be rewarded for
their recovery and encouraged to go to school (S. Rep. 96-314, supra,
at 25-26):
T he Committee would anticipate that the GI Bill educational
assistance would have considerable value to the social and
economic rehabilitation of veterans who have recovered from
disabilities related to alcohol or drugs.
See also S. Rep. 98-604, supra, at 38-39. Congress's repeated
rejection of that argument, however, has not been unreasonable. Under
the statute, a qualified veteran -- whether handicapped or
non-handicapped, alcoholic or non-alcoholic -- has ten years from the
date of his discharge to utilize the G.I. Bill educational benefits.
38 U.S.C. 1662(a)(1). Persons in petitioners circumstances therefore
had some meaningful access to the educational benefit program. Cf.
Alexander v. Choate, 469 U.S. at 301-306 (Rehabilitation Act is not
violated by state Medicaid rule that had disparate impact on the
handicapped). Moreover, eligible persons affected by alcoholism have
available to them, during the delimiting period and thereafter,
medical and rehabilitative services provided by the VA. 38 U.S.C.
1610. Even persons such as petitioners, if they are pursuing a
full-time educational program when their delimiting period ends and if
their request for an extension is denied, remain eligible for VA
educational loans after the delimiting date (38 U.S.C. 1662(a)(2)(A)).
In these circumstances, Congress might well conclude that ten years
is time enough for a veteran to resolve a drug or alcohol problem --
that it would be inappropriate, and would indeed communicate the wrong
incentives, to tell veterans that there is no time limit on how long
the VA will wait for them to resolve their problems and proceed with
their publicly-funded education.
Just as this Court has concluded that conduct induced by alcoholism
may be subject to deterrence through criminal sanctions, despite
medical opinion labelling alcoholism a "disease" (Powell v. Texas,
supra), so too is it permissible for Congress to decide that the
"disease" label does not require that alcoholism be categorized for
all purposes with other disabilities less likely to involve elements
of volition. Medical concepts developed in the context of diagnosis
and treatment do not control the administrative decision of how best
to interpret and further the purposes of the veterans' benefit statute
(see note 14, supra). /28/
Moreover, even those medical writers who label alcoholism a
"disease" for purposes of diagnosis and treatment, perceive that the
label embraces a range of conditions including some in which volition
plays a significant role that may be affected by appropriate
incentives. /29/ Even proponents of the "disease" concept recognize
that an alcoholic may be able to exercise control over the amount he
drinks, depending on the individual and on the professional or other
support he or she receives. /30/ Indeed, even the view expressed by
some medical commentators, that alcoholism represents a physical
condition, either inherited or acquired, does not negate an element of
volition: "'physical' hypotheses do not claim that there is no
volition in the alcoholic's excess drinking but that, partly because
of physical abnormality, the alcoholic is one who faces a choice which
is (increasingly) more difficult than for most people." Fingarette,
The Perils of Powell: In Search of a Factual Foundation for the
"Disease Concept of Alcoholism," 83 Harv. L. Rev. 793, 805 (1970).
/31/
Petitioners and the amici criticize the court of appeals' decision
in McKelvey for separating the conduct of an alcoholic from his
underlying condition, allowing the VA to label the conduct of
excessive drinking as "willful misconduct." In fact, however, this
approach coincides with a widely used and frequently successful
approach to the treatment of alcoholics (Fingarette, supra, 83 Harv.
L. Rev. at 807 n.64):
Alcoholics Anonymous maintains that alcoholism is a
"disease," but not that drinking is involuntary. On the
contrary, the entire approach in Alcoholics Anonymous is to
enlist the voluntary cooperation of the alcoholic, to appeal to
him on moral-religious-pragmatic grounds to voluntarily abstain
from drinking, and to engage in reciprocal self-help along these
lines with his brother AA members. /32/
This approach is also compatible with recent studies, which stress
that the "disease" concept of alcoholism is perfectly consistent with
an insistence that the alcoholic assume responsibility for his or her
own conduct (G. Vaillant, supra, at 299): /33/
In conveying the concept that alcoholism is a disease to the
patient, it is important also to underscore that alcoholism is a
disease that is highly treatable, but that like the treatment of
diabetes, treatment of alcoholism will require great
responsibility from the patient.
Even ardent advocates of the "disease" concept recognize that a
person with the genetic predisposition to alcoholism may exercise
personal responsibility and choose not to drink (Talbott, Alcoholism
and Other Drug Addictions: A Primary Disease Entity, 75 J. Med. Ass'n
Ga. 490, 493 (1986), cited by amici American Medical Association, et
al. (Br. 13 n.7)):
There are millions of people in this country who have the
genetic predisposition, but who for cultural, health, personal,
or religious reasons will not abuse, so they never manifest the
disease.
In sum, Congress decided to apply a "willfulness" test to the
participation of alcoholics in veterans' benefits programs. That
decision is consistent with medical authority, which recognizes that
many alcoholics are not completely helpless but retain a significant
degree of volition. In its regulations and policies implementing the
statute, the VA has acted reasonably in focusing the "willfulness"
determination on the presence or absence of an underlying psychiatric
disorder or a derivative organic disorder. The VA's approach -- which
Congress has endorsed -- makes a reasonable distinction among types of
handicaps, based on the "willfulness" test and substantial medical
authority. It is therefore perfectly consistent with the
Rehabilitation Act. /34/
CONCLUSION
The judgments of the courts of appeals should be affirmed.
Respectfully submitted.
CHARLES FRIED
Solicitor General
RICHARD K. WILLARD
Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
JERROLD J. GANZFRIED
Assistant to the Solicitor General
ANTHONY J. STEINMEYER
ROBERT V. ZENER
Attorneys
AUGUST 1987
/1/ A companion provision (38 C.F.R. 3.301(c)(3)) establishes
similar standards for determining when drug usage constitutes "willful
misconduct" rendering the recipient ineligible for a disability
pension or an educational benefits extension.
/2/ She expressed no view on the merits (Pet. App. 38a).
/3/ In response to the court's request at oral argument, the
General Counsel of the VA took the position that the Rehabilitation
Act does not invalidate the VA's interpretation of the "willful
misconduct" language in Section 1662. The court held, however, that
the General Counsel's letter did not constitute a "decision of the
Administrator" for purposes of Section 211(a), since it was written
after the case started. Pet. App. 7a-8a.
/4/ This Court stated in Walters that (473 U.S. at 311) "(t)he
process is designed to function with a high degree of informality and
solicitude for the claimant. There is no statute of limitations, and
a denial of benefits has no formal res judicata effect; a claimant
may resubmit as long as he presents new facts not previously
forwarded. See 38 C.F.R. Sections 3.104, 3.105 (1984)."
/5/ In Section 211(a) Congress has provided "clear and convincing"
evidence (Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967)) of
its intent that VA benefits decisions not be subject to examination by
the courts. Congress has evidenced this intent in terms that are
"'fairly discernible' in the details of the legislative scheme" and
that are sufficiently clear to overcome "the general presumption
favoring judicial review of administrative action" (Block v. Community
Nutrition Inst., 467 U.S. 340, 351 (1984), quoting Data Processing
Service v. Camp, 397 U.S. 150, 157 (1970); see Bowen v. Michigan
Academy of Family Physicians, No. 85-225 (June 9, 1986), slip op. 5 &
n.4). That conclusion is supported by reference to the sources to
which this Court ordinarily turns in assessing legislative intent:
the express language of the statute, "'the structure of the statutory
scheme, its objectives, its legislative history, and the nature of the
administrative action involved'" (Lindahl v. OPM, 470 U.S. at 779
(quoting Block v. Community Nutrition Inst., 467 U.S. at 345)).
Where, as in these cases, there is "persuasive reason to believe" that
Congress sought to preclude review, then that intent must be
respected. Morris v. Gressette, 432 U.S. 491, 501 (1977); Abbott
Laboratories v. Gardner, 387 U.S. at 140.
/6/ The 1957 amendment changed the statute to preclude judicial
review of the Administrator's decision "on any question of law or fact
concerning a claim for benefits or payments under any law administered
by the Veterans' Administration." Act of June 17, 1957, Pub. L. No.
85-56, Section 211(a), 71 Stat. 92. The text of the 1933, 1940 and
1957 versions of the statute appear in Daylo v. Administrator of
Veterans' Affairs, 501 F.2d 811, 813 (D.C. Cir. 1974).
/7/ This Court's reading of the 1970 amendment, as intended to
reaffirm the original meaning of the statute, is confirmed by the fact
that in the 1970 amendment Congress retained the effective date of
October 17, 1940. Pub. L. No. 91-376, Section 8(a), 84 Stat. 790.
Had the 1970 amendment been intended as a change, presumably a 1970
effective date would have been used.
/8/ The courts have articulated only two limited exceptions -- not
applicable here -- to the statutory bar on judicial review: where a
challenge is made to the constitutionality of a statute (Johnson v.
Robison, supra) and where a challenge to a VA policy is made, not by a
party seeking benefits, but by a third party affected by the policy
who has no opportunity to be heard in administrative proceedings.
See, e.g., Evergreen State College v. Cleland, 621 F.2d 1002 (9th Cir.
1980); University of Maryland v. Cleland, 621 F.2d 98 (4th Cir.
1980); Merged Area X (Education) v. Cleland, 604 F.2d 1075 (8th Cir.
1979); Wayne State University v. Cleland, 590 F.2d 627 (6th Cir.
1978). The cases in the latter group were not brought by veterans
seeking review of denials of benefit claims. Rather, they were
brought by "educational institutions interested in the overall
administration of the VA educational benefits program" (86-622 Pet.
App. 18a). Petitioners argue (Br. 46 n.31) that in Wayne State and
Merged Area X the educational institutions were joined as plaintiffs
by individual veterans; but there is no indication in these opinions
that the veterans were seeking to challenge their individual benefits
determinations, or even that the VA had denied benefits to those
veterans. In fact, the courts' rationale makes it clear that had the
plaintiffs challenged the outcomes of individual benefits
determinations, the courts would have held that Section 211(a) barred
jurisdiction (604 F.2d at 1078; 590 F.2d at 632).
In situations where neither of these limited exceptions obtains,
the general rule has prevailed, precluding judicial review of benefits
decisions at the behest of the veteran. E.g., Barefield v. Byrd, 320
F.2d 455 (5th Cir. 1963); Milliken v. Gleson, 332 F.2d 122 (1st Cir.
1964), cert. denied, 379 U.S. 1002 (1965); Redfield v. Driver, 364
F.2d 812 (9th Cir. 1966); Fritz v. Director of Veterans
Administration, 427 F.2d 154 (9th Cir. 1970); Wickline v. Brooks, 446
F.2d 1391 (4th Cir. 1971), cert. denied, 404 U.S. 1061 (1972); Ross
v. United States, 462 F.2d 618 (9th Cir. 1972); De Rodulfa v. United
States, 461 F.2d 1240 (D.C. Cir.), cert. denied, 409 U.S. 949 (1972);
Holley v. United States, 352 F. Supp. 175 (S.D. Ohio 1972), aff'd
without opinion, 477 F.2d 600 (6th Cir.), cert. denied, 414 U.S. 1023
(1973); Anderson v. VA, 559 F.2d 935 (5th Cir. 1977); Rosen v.
Walters, 719 F.2d 1422, 1424-1425 (9th Cir. 1983); Pappanikoloaou v.
Administrator of the Veterans Administration, 762 F.2d 8, 9 (2d Cir.
1985); Roberts v. Walters, 792 F.2d 1109 (Fed. Cir. 1986).
It is true that, as petitioners state (Br. 42-45), there came a
time long after Section 211(a) was enacted, and more than a decade
after it was last amended, when the Administrator of the VA wrote that
Section 211(a) "does not protect every decision, policy, or action of
the VA from judicial scrutiny" (130 Cong. Rec. S6160 (daily ed. May
22, 1984)). That statement was not made in connection with the
enactment, amendment, or reenactment of Section 211(a). The same is
true of the floor statements, cited by petitioners (Br. 44-45), made
by several individual members of the Senate in 1984, which are in any
event inconclusive (see 130 Cong. Rec. S6158 (daily ed. May 22, 1984)
(remarks of Senator Cranston) ("the VA and the Justice Department,
despite my urging, refuse to agree to stop raising in court the bar to
judicial review -- section 211(a) of title 38 -- as a defense in all
cases challenging VA regulations")). These snippets of subsequent
legislative materials thus provide no guidance as to Congress's intent
in enacting Section 211(a) in 1933 and amending it in 1940 and 1970.
/9/ VA policy is typically embodied in two forms: (1) regulations
appearing in Title 38 of the Code of Federal Regulations, and (2)
internal manuals that amplify and explain the regulations. The
present cases involve both types of policy enactment: the VA
regulation (38 C.F.R. 3.301(c)(2)) and the VA's Adjudication Manual,
which expands upon the terse language of the regulation.
/10/ There is presently pending a suit challenging the VA's
regulations and policies with respect to veterans' claims for
disabilities allegedly resulting from exposure to herbicides in
Vietnam. Nehmer v. Veterans Administration, No. 86-6160TEH (N.D.
Cal.).
/11/ Nor is it accurate to suggest that judicial review of
challenges to policies and regulations would not greatly burden the VA
with litigation because, unlike lawsuits challenging individual
benefits decisions, the validity of a policy or regulation need be
litigated only once. Nothing requires all possible challenges to a
regulation by various persons to be presented in a single lawsuit, and
a regulation could be challenged unsuccessfully by different persons
many times. Revisions in the regulations would be subject to similar
challenges. And even if it were true that each policy or regulation
would be the subject of litigation only once, the sheer volume of VA
policies and regulations would produce the substantial, costly
litigation Congress precluded.
/12/ The First Circuit, in the context of a statute barring
judicial review of actions taken under the Federal Employees
Compensation Act (5 U.S.C. 8128(b)), recently characterized an
argument identical to petitioners' as a distortion of the statute.
Paluca v. Secretary of Labor, 813 F.2d 524, 527 (1987). The First
Circuit stated (ibid. (footnote omitted; emphasis in original)):
It would create the absurd result of permitting a court to
strike down a policy statement of the Secretary, notwithstanding
the court's inability to review any subsequent individual
adjudications for conformance with its policy decision. As
recently stated by the Court of Appeals for the District of
Columbia, it is individual determinations that "have
traditionally been accorded more rather than less judicial
protection against agency error than generally applicable rules.
Compare Bi-Metalic Investment Co. v. State Board of
Equalization, 239 U.S. 441 (1915) with Londoner v. Denver, 210
U.S. 373 (1908)." Gott v. Walters, 756 F.2d 902, 915 (1985)
(Scalia, J.). * * * (Plaintiffs') suggestion makes no sense,
because the Secretary would be free, in individual
adjudications, to ignore anything we say, and because it
conflicts with one of the major purposes of Section 8128(b):
"that the Secretary should be free to make the policy choices
associated with disability decisions." Rodriguez v. Donovan, 769
F.2d 1344, 1348 (9th Cir. 1985).
/13/ The extreme reach of the theory is evident on the record in
No. 86-737, where petitioner McKelvey did not even raise any question
under the Rehabilitation Act in the administrative proceedings. Had
he raised the Rehabilitation Act issue, and had that issue been
expressly rejected by the VA, then presumably Section 211(a) would bar
judicial review of that "decision." Petitioner's theory thus would
discourage parties from raising before the agency questions on which
judicial review may later be sought.
/14/ See Powell v. Texas, 392 U.S. at 526 (plurality opinion)
(footnote omitted) (pointing out "the conceptual difficulties
inevitably attendant upon the importation of scientific and medical
models into a legal system generally predicated upon a different set
of assumptions"); id. at 541 (Black, J., concurring) ("Medical
decisions concerning the use of a term such as 'disease' or
'volition,' based as they are on the clinical problems of diagnosis
and treatment, bear no necessary correspondence to the legal decision
whether the overall objectives of the criminal law can be furthered by
imposing punishment."); M. Guttmacher, The Role of Psychiatry in Law:
The Irresistible Impulse 53-54 (1968) ("It is my earnest hope that
the psychiatrist will not be assigned the task of expressing
gradations of responsibility for the alcoholic offender but will be
required only to furnish clinical diagnoses, when that is possible.").
/15/ A recent article cited (at 5) in the amicus brief of the
American Medical Association, states (Categories, Careers, and
Outcomes of Alcoholism, The Lancet 719 (Mar. 29, 1986) (emphasis
added)):
Although the medical and neuropsychiatric consequences of
excessive drinking have long been established as matters of
clinical concern, the notion that alcoholism -- the thing itself
-- is a "disease" is more recent and more controversial.
/16/ The "willful misconduct" test is derived from the benefits
statute for World War I veterans. Act of Oct. 6, 1917, ch. 105,
Section 300, 40 Stat. 405.
/17/ By one estimate, 20% to 30% of alcoholics fall within this
"secondary" category. See American Medical Association Amicus Br. 7.
One of the medical texts cited by amicus National Council on
Alcoholism, Inc. (Br. 14, 19, 26), and by amici American Medical
Association, et al. (Br. 8), describes as a "major group * * * those
alcoholics who develop drinking problems after the onset of a major
psychiatric disorder such as manic-depressive illness, anxiety-panic
disorder, or schizophrenia. * * * These individuals can be considered
secondary alcoholics" (S. Zimberg, The Clinical Management of
Alcoholism 153 (1982)). The same text stresses that "(a) distinction
must be made between the primary and the secondary alcoholic" (id. at
20; see id. at 40-41). The author of that text, Dr. Zimberg,
submitted an affidavit in the district court in No. 86-622 (J.A.
56-80).
An article cited as authoritative by the amici American Medical
Association, et al. endorses distinctions between primary and
secondary alcoholism, describing a survey indicating that secondary
alcoholism is more difficult to control. Categories, Careers, and
Outcomes of Alcoholism, The Lancet 719 (Mar. 29, 1986). In this
survey, the primary alcoholics had a "lower intensity of drinking, and
fewer social problems than most in the secondary categories," while
the secondary alcoholics had "the poorest clinical outcomes with, as
might be expected, higher rates of social and forensic problems"
(ibid.).
/18/ The cited Manual provision states that "(b)asic principles for
application in deciding cases involving alcoholism are stated in
Administrator's Decision No. 988 * * *." Administrator's Decision No.
988 is the 1964 decision upon which the VA regulation is based (see
J.A. 138-146).
/19/ The very existence, let alone extensive membership, of the
Alcoholics Anonymous organization (see pages 45-47, infra) is not
easily reconciled with this aspect of petitioners' contentions.
/20/ Amici American Medical Association, et al. makes a somewhat
different argument. Conceding that the Rehabilitation Act still
allows the G.I. Bill's "willful misconduct" standard to be applied to
alcoholics, the amici argue that the Act requires the determination to
be made on a case-by-case basis, without the aid of any regulation
requiring the factfinder to focus on the presence or absence of an
underlying psychological disorder.
/21/ See, e.g., E. Jellinek, The Disease Concept of Alcoholism
35-41 (1960) (identifying five different types of alcoholics, only two
of which are regarded as suffering from a "disease"); S. Zimberg,
supra, at 20 (distinguishing between primary and secondary
alcoholism); Bohman, et al., Maternal Inheritance of Alcohol Abuse,
38 Arch. Gen. Psychiatry 965, 968 (1981) (describing genetically
different types of susceptibility to alcoholism, each producing a
different form of alcoholism); Cloninger, et al., Inheritance of
Alcohol Abuse: Cross-Fostering Analysis of Adopted Men 38 Arch. Gen.
Psychiatry 861, 867 (1981) (identifying two types of alcohol abuse
with different genetic and environmental causes); Schuckit, Genetic
Aspects of Alcoholism, 15 Annals of Emergency Medicine 991-992 (1986)
(distinguishing primary alcoholism from secondary alcoholism, which
occurs "in the context of another major preexisting psychiatric
illness"); American Psychiatric Ass'n, Diagnostic and Statistical
Manual of Mental Disorders 129-138, 163-170 (3d ed. 1980) (hereinafter
DSM-III) (identifying seven organic mental disorders attributed to the
ingestion of alcohol, all of which are distinguished from alcohol
abuse and alcohol dependence).
"(A)lcohol abuse reflects a multidetermined continuum of drinking
behaviors whose determinants are differently weighted for different
people and include culture, habits, social mores, and genes" (G.
Vaillant, supra, at 17). See Zimberg, Office Psychotherapy of
Alcoholism in Alcoholism and Clinical Psychiatry 218 (J. Solomon ed.
1982) ("alcoholism does not occur as an all-or-none phenomenon but has
varying degrees in the same individual").
/22/ One medical commentator states that "(l)ike an automobile
driver who chooses to drive rapidly down a busy highway in a car with
defective brakes and ends up spending two years in an orthopedic
rehabilitation clinic, the alcoholic may consciously have made some
early decisions related to his eventual disorder. But such conscious
choice becomes less and less important with the passage of time" (G.
Vaillant, supra, at 17).
/23/ Of course, Congress did not expressly repeal the 1977 VA
amendments. Moreover, neither the language nor the legislative
history of the 1978 Rehabilitation Act amendments evidences any
congressional awareness of an effect on the veterans' educational
benefit extension provision or any congressional intent to repeal a
standard it had endorsed just one year earlier.
/24/ In proposing the original regulations under the Rehabilitation
Act, HEW referred to "the diversity of existing handicaps and the
differing degree to which particular persons may be affected." 41 Fed.
Reg. 20296 (1976). The regulations define "handicapped persons" in
terms of "physical or mental impairments" which substantially limit
one or more major life activities (or are regarded as doing so);
"physical or mental impairment" includes "orthopedic, visual, speech,
and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes, mental
retardation, emotional illness, and drug addiction and alcoholism." 28
C.F.R. 41.31(a) and (b)(1).
/25/ Indeed, Congress has itself enacted legislation providing
benefits only to persons suffering from certain handicaps (e.g., 29
U.S.C. 721(a)(5), 706(13) ("severe handicaps")), legislation that
grants priorities only to persons with a specific disability (e.g.,
Pub. L. No. 93-516, Tit. II, Sections 201-210, 88 Stat. 1622-1630
(blindness)), and legislation that expressly excludes persons with
certain handicaps from eligibility (e.g., Rehabilitation Act Section
7(7)(B), 29 U.S.C. 706(7)(B), which, in specified circumstances,
excludes persons who abuse alcohol or drugs from the definition of
"handicapped person").
/26/ Given the limited resources available for veterans' benefits,
Congress may reasonably place limitations on eligibility for such
benefits, and it is Congress's prerogative to determine the manner in
which priorities will be set and resources allocated. Cf. McDonald
vs. Board of Elections, 394 U.S. 802, 809 (1969).
/27/ There is presently pending in the Third Circuit a case in
which an alcoholic veteran is challenging the VA "willful misconduct"
regulation as applied to claims for disability pensions on the basis
of alcoholism. Buck v. Veterans Administration, No. 86-1656. The
Third Circuit has stayed proceedings in that case pending this Court's
decision in the present cases. Amicus Vietnam Veterans of America
states (Br. 2-3) that one of its reasons for participating here is its
participation in Buck.
/28/ The medical community has found it useful to apply the
"disease" label to alcoholism for reasons that have nothing to do with
the administration of a benefits program. See Fingarette, The Perils
of Powell: In Search of a Factual Foundation for the "Disease Concept
of Alcoholism," 83 Harv. L. Rev. 793, 809-812 (1970). One researcher
has summarized these reasons (Blume, Public Policy Issues, supra, at
186-187):
Acceptance of alcoholism as a disease is the basis for public
policies promoting early intervention; treatment; third-party
coverage, such as public and private health insurance; services
for families of alcoholic persons, with or without the
participation of the alcoholic member; prevention services for
children of alcoholic parents; and wide-ranging research into
the biology, epidemiology, psychology, and sociology of
alcoholism.
/29/ See note 21, supra. "(M)any authorities flatly oppose (the
"loss of control") orientation, and, while recognizing that there may
be physical factors at work, consider it essential that 'there is a
whole series of voluntary actions in the act of drinking; and there
has to be a choice involved.'" Fingarette, supra, 83 Harv. L. Rev. at
808 n.66; see DSM-III at 169 (diagnostic criteria for alcohol abuse
include "continuation of drinking despite a serious physical disorder
that the individual knows is exacerbated by alcohol use").
/30/ A survey of the literature in 1970 concluded that even
authorities "who use 'loss of control' language ultimately introduce
serious qualifications. * * * (W)e are told not that the alcoholic
has no control of his drinking, but that he has greater or lesser
control, widely varying in degree according to the circumstances and
the individual." Fingarette, supra, 83 Harv. L. Rev. at 802 (emphasis
in original). More recent authority, cited in this case as supporting
the "disease" concept, bears out this description. Thus, one writer
states (Wolf, Alcohol and Health: The Wages of Excessive Drinking, in
Alcoholism and Related Problems: Issues for the American Public 29
(1984), cited by amicus National Association of Addiction Treatment
Providers (Br. 11 n.6)):
There has been much dispute, but no consensus, about the
various parts played by genetic inheritance, the social
pressures, special features of individual growth and maturation,
and the insidious effect of ethanol itself in the cause of
alcoholism. Apparently, all are pertinent, and the behavioral
characteristics of alcoholics are partly innate and partly
shaped by learning or practice.
See also S. Zimberg, supra, at 8:
Alcoholism can best be considered a disease with a multiple
causality. The factors believed to contribute to the
development of alcoholism are both psychological and
sociocultural, along with physiological factors which probably
operate on a genetic basis.
The "disease" approach to alcoholism has itself been substantially
revised (Kissin & Hanson, The Bio-psycho-social Perspective in
Alcoholism, in Alcoholism and Clinical Psychiatry 12 (J. Solomon ed.
1982) (footnote omitted)):
In the old disease concept of alcoholism as promulgated by
Jellinek and expanded upon by both psychoanalysis and Alcoholics
Anonymous, the alcoholic was seen as more or less preordained to
become alcoholic and to remain quintessentially alcoholic even
after he became abstinent. * * * (T)he old disease concept of
alcoholism has largely been discarded.
In the new approach to the disease concept a variety of
influences -- physiological, psychological, and social -- are
seen as contributing to the development of problem drinking * *
*.
/31/ The studies cited by amici to support the genetic component of
alcoholism concede that the genetically-predisposed alcoholic retains
volition in the sense of being susceptible to outside authorities
telling him he should not drink (Bohman, et al., Maternal Inheritance
of Alcohol Abuse: Cross-Fostering Analysis of Adopted Women, 38 Arch.
Gen. Psychiatry 965 (1981), cited by Amicus National Council on
Alcoholism, Inc. (Br. 25 n.13); see Cloninger, supra, at 867):
(T)he critical importance of sociocultural influences in most
alcoholics suggest that major changes in social attitudes about
drinking styles can change dramatically in the prevalence of
alcohol abuse regardless of genetic predisposition.
The most recent study cited by the amici also states that even
among genetically predisposed individuals, "personal values and
intentions" play a role in excessive drinking. Peele, The
Implications and Limitations of Genetic Models of Alcoholism and Other
Addictions, 47 J. Studies on Alcohol 63 (1986).
/32/ The AA treatment has also been described as a way of
"transform(ing) externalization of responsibility into
self-responsibility." G. Vaillant, supra, at 204; see S. Zimberg,
supra, at 118 ("The only requirement for AA membership is a desire to
stop drinking.").
"'There is no longer any question that Alcoholics Anonymous has
been responsible for the sobriety of more alcoholics than any other
method, social, religious, or medical. Psychiatrists are now
"believers."'" M. Hayman, Alcoholism -- Mechanism & Management 174-175
(1966), quoted in Fingarette, supra, 83 Harv. L. Rev. at 807 n.64.
One of the studies cited by amici acknowledges that while the data are
inconclusive, AA treatment as well as "personal resolve" has helped
cure many alcoholics (West, Alcoholism and Related Problems: An
Overview, in Alcoholism and Related Problems: Issues for the American
Public 17 (1984)):
AA is known to have helped hundreds of thousands of
alcoholics to maintain sobriety. Other alcoholics, even without
the help of AA, have also been able to remain sober through
personal resolve reinforced by family support, religious
conversion experiences, psychotherapeutic intervention, and
effective contact with medical facilities and health personnel.
/33/ The role of self-responsibility in the cure of alcoholism is
also stressed in S. Zimberg, supra, at 67-69:
The patient should be told that the therapist, the patient's
spouse, or anyone else cannot stop a problem drinker from
drinking. Only the patient's own efforts, utilizing the
treatment tools, will result in a recovery from the problem
drinking.
* * * * *
The patient's recovery ultimately depends on his weighing the
benefits of sobriety against the "benefits" of drinking. Only
the patient can make this determination.
/34/ This Court's decision in School Bd. of Nassau County v.
Arline, supra, does not require the conclusion that the Rehabilitation
Act prevents the VA from carrying out the "willful misconduct" test
for G.I. Bill extensions and disability pensions imposed by the
veterans' benefits statute. The Court's opinion in Arline concluded
(slip op. 9) that the purpose of the Rehabilitation Act is to assure
that handicapped individuals are not denied benefits because of
"prejudiced attitudes or * * * ignorance" or "society's accumulated
myths and fears" (ibid.). In this case, unlike Arline, the VA is
implementing a specific congressional decision to utilize a "willful
misconduct" standard; and it has done so in a manner that accepts
psychiatric testimony in individual cases to determine whether a
psychiatric disorder is involved in the particular case. Thus, the
reconciliation here of the Rehabilitation Act with a more specific
congressional directive -- a matter not addressed in Arline -- is
fully consistent with the Court's rationale in that case.
APPENDIX
-------------------------------------------------------------------------------------------------------
Search ResultsNew Constitutions In Progress
In the case of Rodrigues vs. Ray Donovan (US Secretary of Labor) 769 F2d 1344, 1348 (1985) the court ruled: "All codes, rules and regulations are applicable to the ...
anti-federalist/newconst.html - Cached
no-
process as applied to Sherwood T. Rodrigues. Rodrigues vs Ray Donovan (US Secretary of Labor) 769 F2d 1344, 1348 (1985) 4) All laws, rules and practices which are ...
anti-federalist/files/cityfrau.txt - Cached
ECC - ECCLESIASTIC COMMONWEALTH COMMUNITY - "saving to ...
Rodrigues vs Ray Donovan (US Secretary of Labor) 769 F2d 1344, 1348 (1985) (My emphasis) So, they did not even have any admissable evidence of my identity, as even my ...
forum/topic.asp?TOPIC_ID=306&whichpage=8 - Cached
GCongress> Constitution not applicable in USDC
Rodrigues vs Ray Donovan (US Secretary of Labor) 769 F2d 1344, 1348 (1985)" Sherwood was convicted and took the case to the 9th which would not touch it except to remand ...
constitutionalgov.us/pipermail/generalcongress... - Cached
Fighting Traffic Tickets
Rodrigues vs Ray Donovan (US Secretary of Labor) 769 F2d 1344, 1348 (1985)…So, unless you’re a City, County or State EMPLOYEE, you’re not guilty!
?p=137 - Cached
YouTube - NH man broadcasts own arrest live 1/2 codes, rules and regulations are unconstitutional and lacking in due. process..... Rodrigues vs Ray Donovan (US Secretary of Labor) 769 F2d 1344, 1348 ( 1985)
watch?v=yKMaaRFhsB8 - Cached.Play Video
Vídeo NH man broadcasts own arrest live 1/2 en VIDEOS.es
All codes, rules and regulations are unconstitutional and lacking in due process.....Rodrigues vs Ray Donovan (US Secretary of Labor) 769 F2d 1344, 1348 (1985)
videos.es/reproductor/nhmanbroadcastsownarrestlive12... - Cached
Case Cites These case cites are useful in any type of situation you may find your self in. Going Pro Se is becoming very popular as it is increasingly more difficult to get an attorney who looks out for your interests...
doc/20411404/Case-Cites - Cached.Read Doc
813 F2d 524 Paluca v. Secretary of Labor Paluca | OpenJurist
See Rodrigues v. Donovan, 769 F.2d 1344, 1347-48 (9th Cir.1985). Accordingly, the ... Rodrigues v. Donovan, 769 F.2d 1344, 1348 (9th Cir.1985). Issuing an FECA Program ...
813/f2d/524 - Cached
Rodriguez v. Donovan, 769. F.2d 1344, 1348 (9th Cir. 1985). /13/ The extreme reach of the theory is evident ... vs. Board of Elections, 394 U.S. 802, 809 (1969). ...
osg/briefs/1987/sg870454.txt - Cached
Search ResultsNotice: Ninth Circuit Rule 36-3 Provides that Dispositions ...
See Rodrigues v. Donovan, 769 F.2d 1344, 1347-1348 (9th Cir.1985). Woodward also alleges a constitutional tort ... United States of America; Ray Larsen; Colleen St. Louis ...
vid/precedential-doctrines-cynthia-woodward... - Cached
Tak-Ming Wong and King-Fong Wong, Yat Sum International ...
Rodrigues v. Donovan, 769 F.2d 1344, 1348 (9th Cir.1985). Where, as here, there is no statutory or regulatory ... el anexo adjunto al no haberse podido prac... | Huang vs ...
vid/tak-ming-wong-king-fong-yat-sum-37104818 - Cached
Code Jericho
584 F. 2d 1350, 1352 (4th cir 1978) U.S. v. Traitz, 871F ... I have repeatedly terminated Ray Kent as my Counsel ... of Public Safety 480 So. 2d 577 (Ala. Civ. App. 1985)
codejericho. - Cached
Full text of "456 UNITED STATES REPORTS"
Full text of "456 UNITED STATES REPORTS"
stream/456unitedstatesr014363mbp/456... - Cached
codejericho.
584 F. 2d 1350, 1352 (4th cir 1978) U.S. v. Traitz ... of Public Safety 480 So. 2d 577 (Ala. Civ. App. 1985 ... One Complainant, Raul Rodriguez, representing 4 counts, is ...
codejericho.feeds/posts/default?orderby=updated - Cached
[DOC] CURRICULUM VITAE OF JUDGE
Microsoft Word - View as html
“The Crisis in the Courts,” 5 Manhattan Report 3 (no. 2, 1985) (roundtable ... Responsive Community, Summer 2002, p. 4, and under the same title in Rights vs ...
home.uchicago.edu/~rposner/CurrVitae2.doc
List of Decisions Cited - United States Patent and Trademark ...
Caveney, In re, 761 F.2d 671, 226 USPQ 1 (Fed. Cir. 1985), 2133.03(b) ... Cole, In re, 326 F.2d 769, 140 USPQ 230 (CCPA ... Donovan, Ex parte, 1890 C.D. 109, 52 O.G. 309 ...
web/offices/pac/mpep/documents/appxii.htm - Cached
Rocky Mountain Mineral Law Foundation
Del Monte Corp., 748 F.2d 1348 (9th Cir ... Her Majesty's Government, 553 So. 2d 1344 ... American Recovery Co., 769 F.2d 207 (4th Cir. 1985) 39:3.02[1 ...
pubs/procs/cases-37-49.htm - Cached
Untitled 1 []
Sherwood, 312 US 584, 586, 61 SCt 767, 769, 85 ... Leasing Corp. v. United States, 764 F2d 891, 895 n.8 (D.C. Cir. 1985 ... Zenith Radio Corp., 475 US 574, 106 SCt 1348 ...
Federal/1997/1997DSD001.html - Cached
Index of Califonria Supreme Court Third Series Opinions
Rodriguez (1990) 51 Cal.3d 437 [272 Cal.Rptr. 613; 795 P.2d ... 1989) 49 Cal.3d 14 [259 Cal.Rptr. 740; 774 P.2d 769] ... Croy (1985) 41 Cal.3d 1 [221 Cal.Rptr. 592; 710 P.2d 392
c3.html - Cached
Good Day All;
Thought I would throw this out — Found it while searching the "right of travel"
position. Used it to confuse the ADA and the court forcing them to dismiss for
lack of SMJ.
Quote "All codes, rules and regulations are applicable to the government
authorities only, not human/creators in accordance with God's laws. All codes,
rules and regulations are unconstitutional and lacking in due process...."
Rodriques v. Ray Donavan (US Department of Labor), 769 F. 2nd 1344,1348 (1985).
Can any one verify this, I have yet to find the decision — would love to read
it.
Paul Lowery
Hermes Architects, Inc.
713.785.3644
Moderator/Bear: Paul, below is the decision you cite to:
Rodrigues v. United States Secretary of Labor, 769 F.2d
1344 (9th Cir. 08/26/1985)
[1] UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
[2] No. 84-1712
[3] 1985.C09.40322 ; 769
F.2d 1344
[4] decided: August 26, 1985.
[5] SHERWOOD T. RODRIGUES,
PLAINTIFF-APPELLANT, v. UNITED STATES
SECRETARY OF LABOR, RAYMOND J. DONOVAN,
ET AL., DEFENDANTS-APPELLEES
[6] Appeal from the United States District Court for the
Northern District of California, Robert P. Aguilar, District
Judge, Presiding.
[7] Sherwood T. Rodrigues, Pro Per, Sunnyvale,
California; Judith D. Lazenby, Esq., Sunnyvale, California,
for Plaintiff-Appellant.
[8] Sandra Willis, AUSA, San Francisco, California, for
Defendants-Appellees.
[9] Wallace, Kennedy, and Fletcher, Circuit Judges.
[10] Author: Fletcher
[11] FLETCHER, Circuit Judge:
[12] Rodrigues challenges the termination of his workers'
compensation benefits, contending that he has been
deprived of due process. The district court dismissed his
claim for lack of subject matter jurisdiction, on the basis
that Rodrigues had failed to exhaust available administrative
remedies. We reverse and remand.
[13] I. FACTS
[14] From January 1969 to July 1972, Sherwood Rodrigues
was employed as a bank examiner with the Federal Home
Loan Bank Board. In November 1972, Rodrigues filed a
claim with the Office of Workers' Compensation Programs,
United States Department of Labor (OWCP). OWCP
determined that Rodrigues was totally disabled and
awarded compensation for his disability from December 9,
1971.
[15] In the fall of 1977, the Internal Revenue Service (IRS)
began investigating Rodrigues for tax evasion. The IRS
concluded that Rodrigues had been employed as an
accountant and had received earnings from 1971 through
1979. The IRS communicated this to OWCP and also
referred the matter to the United States attorney, who
brought criminal charges against Rodrigues for failure to file
tax returns, 26 U.S.C. § 7203 (1982), and for filing false
claims for disability payments with the Department of
Labor, 18 U.S.C. §§ 287, 1920 (1982).
[16] On July 19, 1979, before Rodrigues was tried on the
criminal charges, OWCP notified Rodrigues by letter that
his disability benefits had been suspended. The OWCP
letter also asked him to submit a statement detailing his
employment and earnings since 1971. Through counsel,
Rodrigues responded that he had not worked for anyone
since he left government employment and that he had not
had any employment earnings. Rodrigues also requested a
hearing concerning "why he [had] been disqualified for
further benefits."
[17] OWCP responded by letter that Rodrigues had not
been disqualified for further benefits, but that they merely
were suspended pending resolution of the criminal action.
The letter stated, "If Mr. Rodrigues is found not guilty of
the charges, appropriate benefits will be reinstated." The
letter did not mention Rodrigues's request for a hearing.
[18] In September 1982, the criminal action against
Rodrigues was concluded. Rodrigues was convicted after a
jury trial on the tax return charges, but the government
agreed to dismiss the charges relating to false disability
claims in return for Rodrigues's agreement not to appeal his
conviction on the other counts. OWCP did not reinstate
Rodrigues's benefits, however. Instead, it initiated an
investigation of Rodrigues's employment and earnings
through the Office of Inspector General (OIG). Rodrigues
asserts that from 1979 onward, he made numerous efforts
to have his benefits reinstated and repeatedly received
reassurances from OWCP personnel that a decision was
imminent. But, as of November 1983, sixteen months after
the conclusion of the criminal action, OWCP had not
issued any formal decision.
[19] Rodrigues's counsel demanded that a final decision be
rendered. Finally, on December 27, 1983, based on
"additional information" obtained from the OIG
investigation,*fn1 OWCP issued a decision formally
rejecting Rodrigues's claim for benefits. The stated reason
for the termination was that Rodrigues was employable and
had been employed in the field of public accounting. The
decision letter stated that OWCP had reached its
conclusions based on "evidence of record," but the letter
did not set forth what that evidence was.
[20] OWCP issued a second decision on January 9, 1983,
concluding that Rodrigues had been overpaid benefits in
the amount of $97,163.76 for the period from 1971 to 1979
because he "failed to report his employment activities
correctly."
[21] Rodrigues requested administrative hearings with
regard to both OWCP decisions. Then, on February 6,
1984, Rodrigues filed this action in the district court,
seeking injunctive relief to compel the Secretary to reinstate
benefits from September 1982, until an administrative
hearing could be held. The complaint alleged that OWCP's
handling of Rodrigues's claim had violated fifth amendment
due process.
[22] The district court denied Rodrigues's motion for a
preliminary injunction and, on its own motion, dismissed
the action for lack of subject matter jurisdiction. Rodrigues
timely appealed.
[23] While the case has been on appeal to this court,
OWCP has advised Rodrigues that an administrative
hearing will be held on his claims.
[24] II. DISCUSSION
[25] The district court concluded that it lacked subject
matter jurisdiction because Rodrigues had not exhausted
his administrative remedies. Jurisdiction and exhaustion in
this case, however, are separate issues, and the district
court should have treated them as such. See United States
v. California Care Corp., 709 F.2d 1241, 1248 (9th Cir.
1983); SEC v. G.C. George Securities, Inc., 637 F.2d 685,
688 & n.4 (9th Cir. 1981); Montgomery v. Rumsfeld, 572
F.2d 250, 252-53 (9th Cir. 1978). We address these issues
separately here.
[26] A. Jurisdiction
[27] Rodrigues's compensation claim arose under the
Federal Employees Compensation Act (FECA), 5 U.S.C.
§§ 8101-8151 (1982), which provides:
[28] The action of the Secretary or his designee in allowing
or denying a payment under this subchapter is -- (1) final
and conclusive for all purposes and with respect to all
questions of law and fact; and (2) not subject to review by
another official of the United States or by a court by
mandamus or otherwise.
[29] 5 U.S.C. § 8128(b) (1982). The Secretary contends
this provision divested the district court of jurisdiction to
hear this action. We disagree.
[30] Courts have long indulged in a presumption favoring
judicial review of agency action. The Supreme Court has
stated that "only upon a showing of 'clear and convincing
evidence' of a contrary legislative intent should the courts
restrict access to judicial review." Abbott Laboratories v.
Gardner, 387 U.S. 136, 141, 87 S. Ct. 1507, 18 L. Ed. 2d
681 (1967); accord Lindahl v. Office of Personnel
Management, 470 U.S. 768, 84 L. Ed. 2d 674, 105 S. Ct.
1620, 470 U.S. 768, 105 S. Ct. 1620, 1627 84 L. Ed. 2d
674 (1985); Dunlop v. Bachowski, 421 U.S. 560, 568, 44 L.
Ed. 2d 377, 95 S. Ct. 1851 (1975). The "clear and
convincing evidence" standard is not talismanic. See Block
v. Community Nutrition Institute, 467 U.S. 340, 81 L. Ed.
2d 270, 104 S. Ct. 2450, 104 S. Ct. 2450, 2454, 81 L. Ed.
2d 870 (1984). The question is one of congressional intent;
whether a statute precludes judicial review "is determined
not only from its express language, but also from the
structure of the statutory scheme, its objectives, its
legislative history, and the nature of the action involved."
Id. at , 104 S. Ct. at 2454 (citations omitted), quoted in
Lindahl v. Office of Personnel Management, 105 S. Ct. at
1627.
[31] Section 8128(b) of FECA precludes judicial review of
an action of the Secretary "in allowing or denying a
payment." The conduct of the Secretary that Rodrigues
challenges in this action is not the "allowing or denying [of]
a payment," but rather the manner in which his claim was
decided. He contends that he has been denied procedural
due process. He does not seek to have his disability claim
decided by the district court. He is not arguing in any
respect the merits of his underlying compensation claim.
Rodrigues's procedural challenge is entirely collateral to his
underlying substantive claim for benefits. See Boettcher v.
Secretary of Health & Human Services, 759 F.2d 719, 721
(9th Cir. 1985); cf. Heckler v. Ringer, 466 U.S. 602, 80 L.
Ed. 2d 622, 104 S. Ct. 2013, (1984) (challenge to
procedures was "inextricably intertwined" with claim for
benefits, therefore claim should not be separated into
procedural and substantive elements).
[32] The presumption in favor of judicial review is
especially strong in cases in which constitutional challenges
are raised. "Constitutional questions obviously are unsuited
to resolution in administrative hearing procedures and,
therefore, access to courts is essential to the decision of
such questions." Califano v. Sanders, 430 U.S. 99, 109, 51
L. Ed. 2d 192, 97 S. Ct. 980 (1977). Indeed, if Congress
intended to preclude judicial review of the constitutionality
of a statutory procedural scheme, that likely would raise a
substantial question concerning the constitutionality of the
statute itself. Weinberger v. Salfi, 422 U.S. 749, 762, 45 L.
Ed. 2d 522, 95 S. Ct. 2457 (1975). Several cases have
refused to read statutory finality provisions to preclude
review of constitutional claims. See, e.g., Johnson v.
Robison, 415 U.S. 361, 373-74, 39 L. Ed. 2d 389, 94 S.
Ct. 1160 (1974); Rosen v. Walters, 719 F.2d 1422, 1423
(9th Cir. 1983); Parodi v. Merit Systems Protection Board,
702 F.2d 743, 745-49 (9th Cir. 1982); Humana, Inc. v.
Califano, 191 U.S. App. D.C. 368, 590 F.2d 1070, 1080-81
(D.C. Cir. 1978); Trinity Memorial Hospital, Inc. v.
Associated Hospital Service, Inc., 570 F.2d 660, 665-67
(7th Cir. 1977); Ralpho v. Bell, 186 U.S. App. D.C. 368,
569 F.2d 607, 620-22 (D.C. Cir. 1977).
[33] The structure of FECA and the language of section
8128(b) convince us that Congress's intent was that the
courts not be burdened by a flood of small claims
challenging the merits of compensation decisions, see, e.g.,
Soderman v. United States Civil Service Commission, 313
F.2d 694, 695 (9th Cir. 1962) (per curiam), cert. denied,
372 U.S. 968, 83 S. Ct. 1089, 10 L. Ed. 2d 131 (1963), and
that the Secretary should be left free to make the policy
choices associated with disability decisions. Cf. United
States v. Erika, Inc., 456 U.S. 201, 208-10, 72 L. Ed. 2d
12, 102 S. Ct. 1650 (1982) (similar purpose found in
Medicare review provisions); Johnson v. Robison, 415
U.S. at 370 (similar purpose found in finality provision of
veterans' benefits statute). We do not read the statute to
take the "extraordinary" step of foreclosing jurisdiction
over constitutional claims. See Califano v. Sanders, 430
U.S. at 109; see, e.g., Allen v. Faragasso, 585 F. Supp.
1114, 1118 n.3 (N.D. Cal. 1984) (court decided challenges
to OWCP procedures but refused to consider merits of
compensation decision).
[34] Although a mere allegation of a constitutional violation
would not be sufficient to avoid the effect of a statutory
finality provision, see Reid v. Engen, 765 F.2d 1457, 1461
(9th Cir. 1985), the record before us indicates that
Rodrigues may have cognizable due process claims.
Rodrigues does not make a facial attack on the
constitutionality of the FECA procedures themselves, but,
instead, asserts that the procedures are unconstitutional as
applied to him. Given the Secretary's failure to provide a
hearing after the suspension of benefits, despite
Rodrigues's request for one, and the Secretary's
considerable delay in deciding Rodrigues's claim, we do
not find the due process challenges insubstantial. See
Cleveland Board of Education v. Loudermill, 470 U.S. 532,
84 L. Ed. 2d 494, 105 S. Ct. 1487, (1985) ("At some point,
a delay in the post-termination hearing would become a
constitutional violation." (citation omitted)); Kelly v.
Railroad Retirement Board, 625 F.2d 486, 490-91 (3d Cir.
1980).
[35] We do not mean by this to express any opinion on the
ultimate merit of Rodrigues's due process claims. We defer
to the district court in the first instance. We simply
conclude that, on the basis of the record before us,
Rodrigues's due process contentions appear to be more
than mere allegations included in the complaint to create
jurisdiction where none would exist otherwise.
[36] B. Exhaustion of Administrative Remedies
[37] Our cases consistently have held that, unless statutorily
mandated, application of the exhaustion doctrine lies in the
sound discretion of the district court. Reid v. Engen, 765
F.2d at 1462; United States v. California Care Corp., 709
F.2d at 1248; Southeast Alaska Conservation Council, Inc.
v. Watson, 697 F.2d 1305, 1309 (9th Cir. 1983); Aleknagik
Natives Ltd. v. Andrus, 648 F.2d 496, 500 (9th Cir. 1980);
Montgomery v. Rumsfeld, 572 F.2d at 253-54. The
judicially-created exhaustion doctrine does not limit
jurisdiction; rather, it permits courts to decide whether to
exercise jurisdiction. See United States v. California Care
Corp., 709 F.2d at 1248; Stauffer Chemical Co. v. FDA,
670 F.2d 106, 107 (9th Cir. 1982).
[38] FECA clearly does not require exhaustion of
administrative remedies as a prerequisite to a district court's
jurisdiction. As we noted above, FECA precludes federal
jurisdiction with regard to the merits of a compensation
claim. 5 U.S.C. § 8128(b); see, e.g., Soderman v. United
States Civil Service Commission, 313 F.2d at 695; see also
Reep v. United States, 557 F.2d 204, 207 (9th Cir. 1977)
(failure to exhaust FECA remedies barred suit under
Federal Tort Claims Act). But we hold today that FECA
was not intended to preclude jurisdiction over a due
process challenge, such as the one Rodrigues raises here.
[39] Just as the nature of Rodrigues's claim in this action
avoids the effect of FECA's finality provision, the nature of
the claim also makes it somewhat ill-suited for application
of the exhaustion doctrine. Exhaustion typically is thought
of as a precondition to a review of the merits of an agency
determination, but, as we must emphasize again, Rodrigues
is not seeking review of the merits of the Secretary's
decision.
[40] Still, the considerations that inform the exhaustion
doctrine are not completely out of place here. Exhaustion
of administrative remedies ordinarily is required to
[41] prevent[] premature interference with agency
processes, so that the agency may function efficiently and
so that it may have an opportunity to correct its own errors,
to afford the parties and the courts the benefit of its
experience and expertise, and to compile a record which is
adequate for judicial review.
[42] Weinberger v. Salfi, 422 U.S. at 765; see also
Montgomery v. Rumsfeld, 572 F.2d at 253. Some of these
policies are implicated here. In particular, review at this
point may be premature and the record as it now stands
may be inadequate for judicial review of Rodrigues's due
process claim.*fn2
[43] First, it is not entirely clear what relief Rodrigues is
seeking. The thrust of his complaint seems to be that he
wants a hearing concerning the overpayment and
termination decisions, and retroactive reinstatement of
benefits until such a hearing is held. But the Secretary has
now notified Rodrigues that he will have a hearing, and, in
fact, that hearing already may have taken place.*fn3
[44] If reinstatement of benefits pending a hearing is the
only relief that Rodrigues seeks and a hearing has been
held, it may be that this case is now moot. On the other
hand, if Rodrigues seeks or is entitled to other relief or if he
contends that the hearing he was given still does not satisfy
due process requirements, it may be that he has now
sufficiently exhausted administrative remedies and the case
should go forward in the district court.
[45] If the hearing Rodrigues was promised has not taken
place, or if it has taken place but no decision has been
issued, it may be appropriate for the district court to retain
jurisdiction in order to ensure that Rodrigues is given the
process he is due.
[46] In sum, then, whether it is prudent to require
exhaustion in this case depends on precisely what relief
Rodrigues is seeking, where his compensation claim stands
in the administrative process, and whether subsequent
administrative hearings, if they have occurred, have affected
Rodrigues's claims.
[47] Given the vagaries of this case, we are in no position
to say whether requiring exhaustion would be wise. In any
event, the determination whether to require exhaustion is a
matter committed in the first instance to the district court's
discretion. The district court, having construed exhaustion
as jurisdictional and having dismissed on that basis, has not
exercised its discretion.*fn4 Under these circumstances, the
appropriate course is to remand to allow the district court
the opportunity to exercise its discretion. See Stratman v.
Watt, 656 F.2d 1321, 1326 (9th Cir. 1981), cert. dismissed,
456 U.S. 901, 72 L. Ed. 2d 170, 102 S. Ct. 1744 (1982);
SEC v. G.C. George Securities, Inc., 637 F.2d at 688 &
n.3; Montgomery v. Rumsfeld, 572 F.2d at 254. We do not
preclude the possibility that the district court after a review
of the facts may find this case moot.
[48] III. CONCLUSION
[49] We conclude that the district court had jurisdiction
over Rodrigues's action. We remand to the district court to
allow it to consider whether to exercise that jurisdiction or
to require exhaustion or to fashion such other relief as may
be indicated.
[50] REVERSED and REMANDED.
[51] Disposition
[52] REVERSED and REMANDED.
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[53] *fn1 The record does not show what this additional
information was or whether OIG issued a report of its
investigation and findings.
[54] *fn2 Here, we refer to the inadequacy of the record,
not in the sense of lack of factual determinations going to
the merits of Rodrigues's compensation claim, but rather in
the sense of lack of facts as to exactly what process the
Secretary has or will afford Rodrigues (the type of hearing,
the reasons for delay, etc.).
[55] *fn3 It was scheduled for the week of April 22-26,
1985.
[56] *fn4 The district court may decide to require
exhaustion, or it may decide to exercise its jurisdiction and
allow the action to proceed. Alternatively, the court might
retain jurisdiction over the case, but stay its own
proceedings pending administrative review. See
Montgomery v. Rumsfeld, 572 F.2d at 254.
19850826
© 1998 VersusLaw Inc.
I used it thusly in a Refused for Fraud letter:
The instruments alleged in error the presumption that I, as one
of the Sovereign people, [Article I, § I of the Michigan
Constitution of 1963] am subject to, or the object
of, statutes, codes, regulations, rules or ordinances,
without material evidence to substantiate, clearly violating
the provisions of constitutionally secured rights and as
set forth in the federal court case of Rodriques v. Donovan, 769
F2d. 1344 at 1348, note 4. As the people are subject to the
laws of the land, the general laws and the mistaken application
of special laws or private laws, ofttimes causes injury or
damage to the rights of the people, by the knowing or
unknowing application of special or private acts in
violation of their unalienable, absolute, and vested rights and
Liberty interests.
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These search terms are highlighted: rodrigues vs ray donovan 769 f2d 1344 1348 1985
GCongress> Constitution not applicable in USDC
Bill billmay at
Fri May 7 16:30:24 CDT 2010
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I do not know what happened in your case but I have been involved in some of my own and I know a lot of the games the courts play. I have also paid attention to things the higher fed appeals courts said at times when they reluctantly upheld a conviction.
I have seen where they made it clear that the person must stand only on the jurisdictional challenge once it is put into the record.
I have seen them rule against someone who made all sorts of claims about being a sovereign because "they never actually denied being a US Citizen" thus there was no contraversy for them to address.
I have been looking at it from a different angle. Make the contraversy about due process. Did the actions of the judge and prosecutor deny the individual due process? When set up properly the clear answer is 'yes' and that is something that I would think would be hard for the court to side step.
Other than due process violations the state courts as well as the USDC's are totally corrupt. Nothing good comes from them anymore - but I did get an Oregon judge fired 10 years ago "for denying me due process."
There was no other issue and is no other issue for US Citizens. They have almost no other constitutionally secured rights.
I am working with someone now where the USDC judge is trying to deny him due process and the person keeps wanting to address other issues but I know they will only serve to allow a court to side step the due process issue.
There was a man back in the mid 80's who stated in a USDC case:
"All codes, rules and regulations are applicable to the government authorities only, not human/Creators in accordance with God's law. All codes, rules and regulations are unconstitutional and lacking in due process as applied to Sherwood T. Rodrigues.
Rodrigues vs Ray Donovan (US Secretary of Labor) 769 F2d 1344, 1348 (1985)"
Sherwood was convicted and took the case to the 9th which would not touch it except to remand it back to the USDC - which simply made the case go away as if never happened.
His was a straight jurisdictional challenge that was as direct as he knew now to make it - but most importantly, it left no wiggle room for the court. It [the gov] would have had to prove he was wrong - and even if it could, it did not dare.
The US Citizenship issue is the foundation upon which all gov regulation today sits and I think it will take a direct approach that is totally unconvuluted with any other issue to win.
I think due process is that route because it would allow the court to reverse, not because the individual is not a US subject - but becuase they were denied due process. This is something they could do without saying anything about the underlying fraud.
Then the judge would automatically be open to civil damages for denial of a constitutionally secured right. That would get the attention of other judges and open the door to some justice.
If this approach would not win, then it is a fact that it is too late to do any act as an individual but instead it would have to be a large enough group that refusal to answer would cause too great a public outcry - and if that did not work, well, we know the answer to that.
Fight and probably die for freedom hoping in the end to restore some rights - or try to live under communism.
I do not feel I have earned the 'Sir' in front of my name. I'm just another peon who has been harmed by the system but who wants some justice brougth back to the white people so it can then be constitutionally extended to others.
----- Original Message -----
From: "Jeff Weakley"
To: "Bill"
Cc: "Charles Stewart" ;
Sent: Friday, May 07, 2010 1:47 PM
Subject: Re: GCongress> Constitution not applicable in USDC
Sir Bill,
Thanks for your reply. However, others (as well as myself) have been
challenging jurisdiction for over 20 years and it rarely provides
relief. Legally it is a valid objection. The problem is that we are
asking the serpents to admit that they are not "lords" over us.
I started in this "Patriot Movement" by studying the "Barrister's Inn
School of Common Law" course. I went through their long course (the
original course) and their shorter one which came out later (back in the
80's) and they were big on challenging jurisdiction and having a clear
status. I also studied "The Freeman Institute" materials. Lastly I
took a 2 year paralegal program in college. After that I've been
reading on my own (starting with Blackstone's Commentaries). So I know
how to do legal research and I'm familiar with the issues. I had a
simple traffic case (no state license plate on my car) where the judge
admitted that I had no contractual nexus that would waive my Common Law
rights and that I had challenged jurisdiction properly and had not
waived any of my rights but the court proceeded in Equity anyway (over
my challenge). I appealed the case through the state appeals system and
all the way to the U.S. Supreme Court and all along the way the courts
side-stepped the question, refused to answer or show any error on my
part but they always supported "Their Power". This (personal
experience) is what opened my eyes to the reality that the courts are
lawless.
Before my personal experience I would tell others that "they were not
doing it right" and "if they did it right, they would win." I've
changed my tune now that God has humbled me and opened my eyes.
I also watched other good men go through similar experiences. Thus,
I don't view jurisdictional challenges as a successful tool that can be
used to get results in the courts today.
Sure I believe we need to "tell them their sins" and "expose them"
but this does not stop their evil deeds. So I am still searching for a
peaceful solution. I agree with Sir Charles that when we get our nation
(and freedom) back Common Law Courts will function again as they should.
But until then, what are our options (short of shooting these serpents)?
I.e. Is there a peaceful solution or have they made that impossible?
Respects,
Jeff
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More information about the GeneralCongress mailing list
Case Cites
Phil D. I simply want to depict some of the case cites available to everyone in support of their fight to regain their property and their rights as Sovereign people on the land. This material has been accumulated over a period of time by several interested individuals. I think there is value in this and should be utilized by as many people as you can get it to. If you have corrections or additions please let me know. You can contact me at philerd@
An interpretation of the Maine Rules of Civil Procedure presents a question of law subject to a de novo review. (a) The purpose of
I have to find the proper way to notice case cites in my material to make them acceptable in court. I believe they must be Italicized and only the case underlined and not the “cite itself.”
Maine Rule of Civil Procedure Rule 17(a) [1978] is to ensure that the party who asserts a cause of action possesses, under substantive law, the right sought to be enforced. Rule 17(a) allows circuit courts to hear only those suits brought by persons who possess the right to enforce a claim and who have a significant interest in the litigation. The requirement that claims be prosecuted only by a real party in interest[1] enables a responding party to avail himself of evidence and defenses that he has against the real party in interest, to assure him of finality of judgment, and to protect him from another suit later brought by the real party in interest on the same matter. In its modern formulation, Rule 17(a) protects a responding party against the harassment of lawsuits by persons who do not have the power to make final and binding decisions concerning the prosecution, compromise, and settlement of a claim. 17(a) has been revised to include[2]. AND I have found the proper method for case cites[3], though I will follow the old scholarly format of underlined italicized format.
“Attorneys can't testify; statements of counsel in brief or in oral argument are not facts before the court.” – United States v. Lovable 431 U.S. 783,97 S. 2004, 52 L. Ed. 2d 752 and Gonzales v. Buist 224 U.S. 126. 56 L.. 693. 32. Ct. 463.S. "An attorney for the plaintiff cannot admit evidence into the court. He is either an attorney or a witness," and, "Statements of counsel in brief or in argument are not facts before the court." – Trinsey v. Pagliaro D.C. Pa. (1964), 229 F. Supp. 647 A Corporation cannot sue the living man, PERIOD. Again, you can use this in every case where a Bank, Vendor, is trying to sue you! They don't want you to know this! – Rundle v. DELAWARE & RARITAN CANAL CO. (1853) Unless you are one who thinks (ERIE RAILROAD CO. V. TOMPKINS, 304 U. S. 64 (1938) -- US Supreme ...) removes the validity of cases prior to 1938 then See for yourself, just click the link; Rundle v. DELAWARE & RARITAN CANAL CO. (1853)[4] If this decision removes the ability to render case cites prior to those after 1938, then why are case cites prior to 1938 used anywhere? All codes, rules and regulations are applicable to the government authorities only, not human/Creators in accordance with Gods laws. All codes, rules and regulations are unconstitutional and lacking in due process. – Rodriques v Ray Donavan (U.S. Department of Labor, 769 F. 2d 1344, 1348 (1985) and see – JONES v. MAYER CO., 392 U.S. 409 (1968), which states, “In plain and unambiguous terms, 1982 grants to all citizens,
without regard to race or color, "the same right" to purchase and lease property "as is enjoyed by white citizens." As the Court of Appeals in this case evidently recognized, that right can be impaired as effectively by "those who place property on the market" as by the State itself.” I have copy as it
pertains to 42 USC 1982
In your full disclosure request, ask your local representative for the legal documents that allow them t
Mere good faith assertions of power and authority (jurisdiction) have been abolished. –
Owens v. The City of Independence (1980)
In closing, it is important to remember that they are not entitled to qualified immunity from liability b
Government jurisdiction does not extend into or onto real or private property.. The right to purchase [and hold] property is a fundamental right of citizenship beyond the powers of the States to deny to any citizen. Property ownership cannot be cause for government to force or coerce title-holder( s) of property to do anything against his or her will. The title-holder has full control over their property and has the right to non- interference from all other parties. – Beech Grove Investment v. Michigan Civil Rights Commission, 157 North Western Reporter, 2d Series, pgs 213-232 (1982) (Perhaps we need to look at transfers of Property Title or Property Deed)
None of the above mentions FRCP 17(a) Ratification of Commencement & Real Party in Interest. Which was v
RULE 60. RELIEF FROM JUDGMENT OR ORDER (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc.... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void;... (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., Sec. 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill or review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. A motion to set aside a judgment as void for lack of jurisdiction is not subject to the time
limitations of Rule 60(b). See – Garcia v. Garcia, 712 P.2d 288 (Utah 1986). There is only an immaterial procedural difference between the relief sought pursuant to Rule 60(b) and the relief sought in an independent action. – Hadden v. Rumsey Prods., 196 F.2d 92 (2d Cir. 1952); 7 Moore's Federal Practice, § 60.38(3) (2d ed. 1971) A judgment is void, and therefore subject to relief under Rule 60(b)(4), only if the court that rendered judgment lacked jurisdiction or in circumstances in which the court's action amounts to a plain usurpation of power constituting a violation of due process. – United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990) Where Rule 60(b)(4) is properly invoked on the basis that the underlying judgment is void, "'relief is not a discretionary matter; it is mandatory.'" – Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994) (quoting V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 n.8 (10th Cir. 1979)). In order for a judgment to be void, there must be some jurisdictional defect in the court's authority to enter the judgment, either because the court lacks personal jurisdiction or because it lacks jurisdiction over the subject matter of the suit. – Puphal v. Puphal, 105 Idaho 302, 306, 669 P.2d 191, 195 (1983); Dragotoiu, 133 Idaho at 647, 991 P.2d at 379. A judgment rendered by a court without personal jurisdiction over the defendant is void. It is a nullity. [A judgment shown to be void for lack of personal service on the defendant is a nullity.] – Sramek v. Sramek, 17 Kan. App. 2d 573, 576-77, 840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993). "Where there are no depositions, admissions, or affidavits the court has no facts to rely on for a summary determination." – Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647. "A court cannot confer jurisdiction where none existed and cannot make a void proceeding valid. It is clear and well established law that a void order can be challenged in any court", – OLD WAYNE MUT. L. ASSOC. v. McDONOUGH, 204 U. S. 8, 27 S. Ct. 236 (1907). "The law is well-settled that a void order or judgment is void even before reversal", VALLEY v. NORTHERN FIRE & MARINE INS. CO., 254 u.s. 348, 41 S. Ct. 116 ( 1920 ) "Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities ; they are not voidable, but simply void, and this even prior to reversal." – WILLIAMSON v. BERRY, 8 HOW. 945, 540 12 L. Ed. 1170, 1189 ( 1850 ). "Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but rather should dismiss the action." – Melo v. U.S., 505 F 2d 1026
"There is no discretion to ignore lack of jurisdiction." – Joyce v. U.S. 474 2D 215. "The burden shifts to the court to prove jurisdiction." – Rosemond v. Lambert, 469 F 2d 416 "Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted." – Latana v. Hopper, 102 F. 2d 188; Chicago v. New York 37 F Supp. 150 "The law provides that once State and Federal Jurisdiction has been challenged, it must be proven." 100 S. Ct. 2502 (1980) "Jurisdiction can be challenged at any time." Basso v. Utah Power & Light Co. 495 F 2d 906, 910. "Defense of lack of jurisdiction over the subject matter may be raised at any time, even on appeal." Hill Top Developers v. Holiday Pines Service Corp. 478 So. 2d. 368 (Fla 2nd DCA 1985) "Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted." Lantana v. Hopper, 102 F. 2d 188; Chicago v. New York, 37 F. Supp. 150. "Once challenged, jurisdiction cannot be assumed, it must be proved to exist." Stuck v. Medical Examiners 94 Ca 2d 751. 211 P2d 389. "Jurisdiction, once challenged, cannot be assumed and must be decided." Maine v Thiboutot 100 S. Ct. 250. "The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings." Hagans v Lavine 415 U. S. 533.
CPLR
CPLR § 3215(f) by providing an Affidavit of Default, Affidavit of Facts Constituting the Claim and the Amount Due, Affidavit of Attorney that Defaulting Defendant Is Not in Military Service
CPLR § 3215 Default judgment Lamb v Moody, 2009 NY Slip Op 04031 (App. DIv., 2nd, 2009)
In support of their motion for leave to enter a default judgment against the respondent upon his failure to appear or to answer the complaint, the plaintiffs failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts as required by CPLR 3215(f) (see Peniston v Epstein, 10 AD3d 450; DeVivo v Sparago, 287 AD2d 535, 536; Fiorino v Yung Poon Yung, 281 AD2d 513). Accordingly, the Supreme Court properly denied the motion.
CPLR § 3215 Default judgment (f) Proof
CPLR R 306 Proof of service (a) Generally Jian Zheng v Evans, 2009 NY Slip Op 04863 (App. Div., 2nd, 2009) In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs produced only an attorney's affirmation offering speculation, unsupported by any evidence, that the defendants acted in bad faith and failed to abide by the terms of the contract of sale (see Cordova v Vinueza, 20 AD3d 445). Moreover, the plaintiffs' contention that the granting of summary judgment was premature is without merit. The plaintiffs failed to "show more than a mere hope that [they] might be able to uncover some evidence during the discovery process," nor did they show that their "ignorance was unavoidable and that reasonable attempts were made to discover the facts which would give rise to a triable issue of fact" (Companion Life Ins. Co. of N.Y. v All State Abstract Corp., 35 AD3d 519, 521). [*2] The Supreme Court also properly granted that branch of the defendants' motion which was for leave to enter a default judgment on their counterclaim for the return of their down payment upon the plaintiffs' failure to serve a reply to the counterclaim. The defendants submitted proof of service of their verified answer and counterclaim, proof of the facts constituting the counterclaim, and an affirmation from their attorney regarding the plaintiffs' default in serving a reply (see CPLR 3215[f]). In opposition, the plaintiffs failed to demonstrate that they served a reply on the defendants. Although they annexed a reply to their attorney's affirmation, it was not signed and they did not provide sufficient evidence of service (see CPLR 306[a], [d]; Celleri v Pabon, 299 AD2d 385, 385-86; cf. Dixon v Motor Veh Acc. Indem. Corp., 224 AD2d 382, 383-384). Moreover, the plaintiffs did not provide a reasonable excuse for their failure to timely serve a reply, and a potentially meritorious defense (see ACME ANC Corp. v Read, 55 AD3d 854, 855; Twersky v Kasaks, 24 AD3d 657, 658; cf. MMG Design, Inc. v Melnick, 35 AD3d 823).
The bold is mine. David M. Gottlieb
CPLR R. 3211(a)(5) Motion to dismiss for SOL (or other things, but SOL in this case) Kuo v Wall St. Mtge. Bankers, Ltd., 2009 NY Slip Op 06511 (App. Div., 2nd, 2009) The Supreme Court also correctly denied that branch of the defendant's motion which was to dismiss the complaint as barred by the statute of limitations. "To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the Statute of Limitations, a defendant bears the initial burden of establishing prima facie that the time in which to sue has expired . . . In order to make a prima facie showing, the defendant must establish, inter alia, when the plaintiff's cause of action accrued. Where, as here, the claim is for the payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the plaintiff possesses a legal right to demand payment'" (Swift v New York Med. Coll., 25 AD3d 686, 687, quoting Matter of Prote Contr. Co. v Board of Educ. of City of N.Y., 198 AD2d 418, 420 [citations [*2]omitted]; see Cimino v Dembeck, 61 AD3d 802; Matter of Schwartz, 44 AD3d 779). The defendant offered no evidence that would support a determination that the plaintiff had a legal right to demand payment of her compensation, in connection with the subject loan transaction, prior to the defendant's receipt of the commission fees from the borrower.
The bold is mine. David M. Gottlieb
VOID JUDGMENT
A void judgment is one that has been procured by extrinsic or collateral fraud or entered by a court that did not have jurisdiction over the subject matter or the parties. – Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987) A void judgment is to be distinguished from an erroneous one, in that the latter is subject only to direct attack. A void judgment is one which, from its inception, was a complete nullity and without legal effect. – Lubben v. Selective Service System, 453 F.2d 645, 649 (1st Cir. 1972) "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." – Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963). "In tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury." Syllabus Point 4, Gaither v. City Hospital, Inc., ___ W.Va. ___, ___ S.E.2d ___ (No. 23401 February 24, 1997). "Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection and justifies no acts performed under it ... No one is bound to obey an unconstitutional law and no courts are bound to enforce it." 16 Am Jur 2nd §177 "The general rule is that an unconstitutional act of the Legislature protects no one. It is said that all persons are presumed to know the law, meaning that ignorance of the law excuses no one; if any person acts under an unconstitutional statute, he does so at his peril and must take the consequences." 16 Am Jur 2d §178 "Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." – Miranda v. Arizona, 384 US 436 at 491.
The following is courtesy of Marc Fishman (he openly posted it on a group web site. I included it here as it has great bearing on the pursuits of those going into court.)...
Coram Nobis
Filing a Coram Nobis, challenging jurisdiction of the court as not being in accord with the Foreign Sovereign Immunity Act (FSIA). In short, since the court is a private subsidiary of a foreign corporation (the UNITED STATES), the court (private foreign corporation) must follow the law in accord with the FSIA. Since there is no way that they can do this in moving against a flesh and blood citizen of one of the republic states, their "judgments" are void ab initio and must be vacated.
The audio files that go along with the documentation can be retrieved from at the following URL: AIB Talk Radio - check the description column for FSIA to find the discussions (begins on 6-27-08) There is also some discussion on Radio Free America, also on TalkShoe: If you're interested in the documentation that goes along with this, use the FTP link below and get the two files in the FSIA directory: Step by Step for the Coram Nobis & Coram Non Judice
What this paper work does is this. It exposes the fraud that has been placed upon you the People of this Nation by our Courts. When the court is operating in it Corporate or a foreign state capacity it can only deal in a corporate setting. They can not bring a suit in law or equity against an American Citizen. This is an 11th amendment violation. That why you as a person, are defined as a Corporation, under the definition of the word ‘Person” in ever law book, Statute, Code, Regulation and law dictionary. The courts know they have no jurisdiction over the Citizen. Now by them having you listed as a Corporation. The laws for bring a claim upon a corporation is different as they are protected under the Foreign Sovereign Immunity Act under (FSIA)28 USC 1602 -1611 as stated this these documents. People lets not get into a debate on how due I spell my name. The issue is this. You can spell you name backwards if that how you fill. That not the issue. The issue is “THEY HAVE YOU LISTED AS A CORPORATION” That were the argument stops. How due they look at you. As a Corporation!!! Fine. As a Corporation and as that Corporation you now have immunity and right protected under the law. Where in the FSIA and the 11th amendment? That where. Is the court going to like it not likely? This is the same IMMUNITY that they have been hiding behind for years. That we did not know about. So these documents have been created in order to expose the fraud place upon the people of such
injustice and to wake the people up to the billions of dollars of tax money being embezzled by the court system. Through the mis-representation by the lawyers of the BAR Association and the misconduct of the Judicial Officers holding these elected or appointed public offices of trust and honor. We have a new discovery and it call Allegation of Jurisdiction. This needs to be the first document sends in on all new cases. This set the stage on the jurisdiction. The accuser is going to half to state what the jurisdiction is. When they claim the wrong jurisdiction then the Coram Nobis goes in. 1. Allegation of Jurisdiction now requires the accuser to define the jurisdiction that the court are going to operate in 2. First document you are going file is the Coram Nobis. A Coram Nobis tell the courts that an error has been made. Either by mistake or a by fraud by them. Definition of Coram Nobis Writ of error coram nobis A common-law writ, the purpose of which is to correct a judgment in the same court in which it was rendered, on the ground of error of fact, for which it was statutes provides no other remedy, which fact did not appear of record, or was unknown to the court when judgment was pronounced, and which ,if known would have prevented the judgment, and which was unknown, and could of reasonable diligence in time to have been otherwise presented to the court, unless he was prevented from so presenting them by duress, fear, or other sufficient cause. At common law in England, it issued from the Court of Kings Bench to a judgment of that court. Its principal aim is to afford the court in which an action was tried and opportunity to correct it own record with reference to a vital fact not known when the judgment was rendered. It is also said that at common law It lay to correct purely ministerial errors of the officers of the court 3. The second document you are going to filed is the Coram Non Judice. This now informs the court that they have no jurisdiction. Their judgment is void or fraud was placed upon court. The courts act as if there is no judge. Writ of coram non judice In presence of a person not a judge. When a suit is brought and determined in a court which has no jurisdiction in the matter, then it is said to be coram non judice, and the judgment is void. At common law in England, it issued from the Court of Kings Bench to a judgment of that court. Its principal aim is to afford the court in which an action was tried and opportunity to correct it own record with reference to a vital fact not known when the judgment was
rendered. It is also said that at common law It lay to correct purely ministerial errors of the officers of the court Now from here you must decide which document applies in Your case. Not all cases are the same. It depends on how the court decides to run. This how you determine on what document you file in next. Be low are a list of documents you must decide which is the one you need to file in next. People remember you will need to make this fit your case. Were it may said property and you are dealing with children then of course you use the word children instead of property. The hard work has already been done by creating these documents for you. You half to have some understanding of filing court papers in to the courts. Some of you this may be your very first time. This will make it rough for the first timers. Get with the people who give you these document and work with them. Also go to . In the search box in the upper right hand ware it said keyword or ID put in 48361. That the ID # for AIB RADIO. Click on AIB RADIO this will take you over to the recording of the FSIA recording for you to down load and listen to. There is no guarantee on this paper work other then you are now exposing the true corruption of the court system. It depends on how honorable or how dishonorable the court is going to be. So far dishonorable has the top place here. As everything that we do it is always your choice to file or not to file any documents. You need an understanding of this paper work and the documents to back it up. First document filed in Allegation of Jurisdiction is the first document filed in a new case. This will cause the accuser to define what the jurisdiction is for the court. When they fail to define the proper jurisdiction then file in the Coram nobis in on them. _______________________________________________________________________ JUDICIAL NOTICE; IN THE NATURE OF WRIT OF ERROR CORAM NOBIS & A DEMAND FOR DISMISSAL OR STATE THE PROPER JURISDICTION ________________________________________________________________________ Second Document filed in JUDICIAL NOTICE ;IN THE NATURE OF WRIT OF CORAM NON JUDICE & A DEMAND FOR DISMISSAL & A REVERSAL OF JUDGMENT FOR CONVICTION FOR LACK OF JURISDICTION. Third document filed in. JUDICIAL NOTICE; IN THE NATURE OF WRIT OF ERROR CORAM NON JUDICE & A DEMAND FOR DISMISSAL OR STATE THE PROPER JURISDICTION
Fourth document filed in. JUDICIAL NOTICE ;IN THE NATURE OF WRIT OF CORAM NON JUDICE & A DEMAND FOR DISMISSAL & OBJECTION FOR LACK OF JURISDICTION WITH EXHIBTS OF CONGRESSIONAL RECORDS &STATEMENT OF FACTS WITH CONLLUSION OF FACTS. Fifth document filed in. THE COURT IS CORAM NON JUDICE UNDER THE FOREIGN SOVEREIGN IMMUNTY ACT 28 USC 1608 RULE 4(j) CONCLUSION OF FACTS WITH LEGAL DEFINITION OF PERSON, CORPORATION & POLITICAL SUBDIVISION JUDICIAL NOTICE ;IN THE NATURE OF WRIT OF CORAM NON JUDICE & A DEMAND FOR DISMISSAL JUST CAUSE COURT IN DEFAULT AND LACK JURISDICTION PURSTANT TO FRCP Rule 4 (j) JUDICIAL NOTICE; THE COURT IS IN CORAM NON JUDICE UNDER THE FOREIGN SOVEREIGN IMMUNITY ACT PURSUANT TO FRCP 4 (j) 2NDNOTICE OF DEFAULT AND NOTICE OF CURE PRAY FOR SUMMARY JUDGMENT.
-- Marc H. Fishman MFishman@... "When you find yourself in a hole, the first thing to do is stop digging." PGP KeyID: 6C8E212E75CDBD79 PGP Key Fingerprint: E620 1F11 D3AC 6FEC 4CC5 8CA6 6C8E 212E 75CD BD79
Thank you for posting this Mark. I have been working on the Coram Nobis issue myself lately, and it's a topic that those who've been down the road to prison might want to research. On Fri, Aug 22, 2008 at 10:55 AM, sheisaceo wrote: I wasn't aware that we 'flame' here as I was hoping that this remained an ego-less forum. Thank you for this. I was busy with writs of habeas corpus and the crooks just keep finding ways to try to slime and weasel out of documents by refusal to file and even overt theft of the documents. You would not believe some of the antics of these people. They HAVE TO KNOW WHAT THEY ARE DOING IS ILLEGAL WITH WHAT THEY DO.
This is from their Yahoo Group:
Please visit & listen to the following 3 conference calls by Rod Class for an excellent presentation of how this strategy developed. You want to listen to: 1.) June 20 EPISODE 71 - FOREIGN RELATION & FOREIGN STATE 2.) July 11 EPISODE 75 - FSIA PART 3 CORPORATION 3.) July 19 EPISODE 78 - FOUNDATION OF THE FSIA
END NOTES BELOW
[1] Real Party in Interest Law & Legal Definition
A real party in interest is the person or entity whose rights are involved and stands to gain from a lawsuit or petition even though the plaintiff who filed suit is someone else, often called a "nominal" plaintiff. It is the person who will be entitled to benefits of a court action if successful; one who is actually and substantially interested in the subject matter, as opposed to one who has only a nominal, formal, or technical interest in or connection with it. It may be broadly defined as someone who may be adversely affected by the relief sought or the person or entity entitled to the benefits if the action is successful. Under the Federal Rules of Civil Procedure (FRCP), FRCP 17(a) provides that "every action shall be prosecuted in the name of the real party in interest", so that the named plaintiff must have, under the governing substantive law, the right sought to be enforced. The real party in interest is not necessarily the person who ultimately will benefit from the successful prosecution of the action. The following is an example of a state statute involving real parties interest: (a) "Except as otherwise provided in clauses (b), (c) and (d) of this rule, all actions shall be prosecuted by and in the name of the real party in interest, without distinction between contracts under seal and parol contracts. (b) A plaintiff may sue in his own name without joining as plaintiff or use-plaintiff any person beneficially interested when such plaintiff 1. is acting in a fiduciary or representative capacity which capacity is disclosed in the caption and in the plaintiff's initial pleading; or 2. is a person with whom or in whose name a contract has been made for the benefit of another. (c) Clause (a) of this rule shall not apply to actions where a statute or ordinance provides otherwise."
← Back [2] To avoid forfeitures of just claims, revised Rule 17(a) would provide that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed for correction of the defect in the manner there stated. ← Back [3] Legal Research and Citation Style in USA
Introduction
The format for citations to legal materials is different from the format for scholarly citations to books and periodicals in general. This handout is a terse guide to legal citation in the USA. The generally accepted style manual for legal citations in the USA is the Bluebook: A Uniform System of Citation, which is published by the editors of four prestigious law reviews at Columbia University, Harvard, Univ. of Pennsylvania, and Yale Law Schools. A copy of the Bluebook can be purchased in any law school bookstore. A comprehensive set of rules from the Bluebook is available on the Internet from Peter W. Martin at Cornell Law School. In contrast, this handout here contains a terse set of rules that generally agrees with the Bluebook, but does not contain all of the fine points and options in the Bluebook. Opinions of some courts use a different format from the Bluebook, but these alternative citation formats
contains the same information. Be aware that citations in annotated statutes and other law books may use a different bibliographic format from the Bluebook. Furthermore, the proper format according to the Bluebook changes with time, so old sources (both cases and law review articles) do not use the modern format for citation.
1. Sources of Legal Materials in USA
Statutes and Regulations in the USA
The U.S. Government publishes each statute enacted by the U.S. Congress in U.S. Statutes at Large. Except for doing historical research, a more convenient way to access federal statutes is to use the U.S. Code, which groups the original statute and all subsequent amendments together in one place. All statutes from the federal government are published by West in the United States Code Annotated. This Code is divided into fifty "titles": 15 is for Commerce and Trade, including trademark statutes 17 is Copyrights 18 is for all federal criminal statutes 26 is the Internal Revenue Code, which is the federal tax law 35 is for Patents 47 is for communications law: telephone, radio/television, etc. Each "title" may fill multiple volumes on a bookshelf. The regulations issued by agencies of the federal government, in order to implement law expressed in the statutes, is published in the Code of Federal Regulations. In addition, each state has its own collection of statutes and regulations. One frequently sees citations in opinions of state courts to decisions from other states, as the common law (i.e., judge-made law) does import rules from other states. In contrast, statutes of other states are irrelevant, because the only statutes that apply are the statutes in the state whose law is being applied. However, occasionally judges look to court opinions from other states in interpreting a word or phrase in a statute.
Reporters for Opinions of Federal Courts
The U.S. Government publishes U.S. Reports that contains the official version of all of the opinions of the U.S. Supreme Court. West publishes: • Supreme Court Reporter that contains all of the opinions of the U.S. Supreme Court since 1882. West's publication is issued several years before the official U.S. Reports appears, and so is useful for citing recent Supreme Court cases. • Federal Reporter contains all of the published opinions of the U.S. Courts of Appeals, plus the few published opinions of Federal District Courts from 1880 to 1932.
• Federal Supplement contains published opinions after 1932 of Federal District Courts, which are trial courts. • Federal Rules Decisions contains published opinions of Federal District Courts that pertain to the Rules of Civil (or Criminal) Procedure. These opinions are not also found in the Federal Supplement. Lawyer Cooperative Publishing Company, now owned by Lexis, publishes the Lawyer's Edition of the U.S. Supreme Court opinions.
West's Reporters for Opinions of State Courts
There are seven regional reporters: Atlantic: Pennsylvania, New Jersey, Maryland, Connecticut, Delaware, Rhode Island, Vermont, New Hampshire, Maine North Eastern: New York, Massachusetts, Illinois, Ohio, Indiana North Western: Michigan, Wisconsin, Minnesota, North and South Dakota, Nebraska, Iowa Pacific: Kansas, Oklahoma, and all states in and west of Montana, Wyoming, Colorado, and New Mexico South Eastern: Georgia, North and South Carolina, Virginia, West Virginia Southern: Florida, Alabama, Mississippi, Louisiana South Western: Texas, Missouri, Kentucky, Tennessee, Arkansas In addition to these regional Reporters, West publishes • California Reporter • New York State Reporter These two Reporters are not just extracts from the regional Reporters (i.e., Pacific for California and North Eastern for New York), but contain occasional opinions from other courts that are not found in the corresponding regional Reporters. A few observations on the West regional reporter system: • The Pacific Reporter was begun in 1883, when there was little legal activity in the 13 western states in the USA, plus Alaska and Hawaii, so it made sense then to bundle all of those states into one Reporter. • New York State and Massachusetts are in the North Eastern Reporter, not in the Atlantic Reporter that serves the surrounding states. • These regional reporters generally only contain published opinions of the state appellate courts, not state trial courts. In fact, it is rare to see a published opinion of a trial court in the USA, because such opinions have no precedential value. However, a few decisions of trial courts in the USA are published:
• Pennsylvania publishes a separate reporter, called Pennsylvania District and County Cases (abbreviated: Pa.D.&C.), that contains some decisions of trial courts • a few decisions of trial courts in New York state are published in West's New York State Reporter (N.Y.S.) • a few decisions of trial courts in New Jersey are published in the Atlantic reporter, the names of these trial courts are "New Jersey Superior Court Law Division" and "New Jersey Superior Court Chancery Division" • and, as mentioned above, some opinions of trial courts in the Federal court system are published in the Federal Supplement (F.Supp.).
misleading state court names
The highest state court in New York State is called the "Court of Appeals". The trial courts in New York State are called the "Supreme Court". The intermediate courts in New York State are called "Supreme Court, Appellate Division". Beware of this misleading nomenclature! In the federal courts, the Courts of Appeals are intermediate courts, between the trial courts and the U.S. Supreme Court. But in both New York and Maryland, their state Court of Appeals is the highest state court. In most states, the Superior Court is a trial court, which handles larger cases than the ordinary trial court. However, the Pennsylvania Superior Court is an intermediate appellate court, between the trial courts and the Pennsylvania Supreme Court.
parallel citations
In addition to these regional reporters from West Publishing, many states publish their own opinions in an official state reporter. A law library will typically have the official state reporter of the state in which the library is located, but not the official state reporters of distant states. The West regional reporters are the standard source for finding opinions of courts in the USA. Nonetheless, one often finds parallel citations to both West's regional reporter and the official state reporter, particularly in Briefs submitted to that state's court. Similarly, one often sees citations to opinions of the U.S. Supreme Court that cite in parallel to three different sources: 1. the official U.S. Reports, 2. West's Supreme Court Reporter (abbreviated "S.Ct."), and 3. Lawyer Cooperative Publishing Company's Lawyer's Edition. I prefer a citation only to U.S. Reports, if available; otherwise I only cite to S.Ct. The Lawyer's Edition includes the pagination to the other two editions.
secondary sources
The law in the USA is only expressed in constitutions, statutes, and opinions of appellate courts, which
are known as primary sources. Secondary sources collect and explain rules of law from the primary sources. There are several secondary sources commonly used by attorneys: 1. American Law Reports, abbreviated "A.L.R.", contains annotations on a particular topic, which list the important cases in state and federal courts on that topic, along with a terse synopsis of the facts of the case and the judge's ruling. If one can find a relevant annotation in ALR, this may be a quick way of grasping the legal principles. Annotations in ALR are not commonly cited, except as authority for a statement of a legal rule in the majority of jurisdictions. Do not look for advocacy of a change in law in ALR, because ALR only reports what the law is. 2. American Jurisprudence, abbreviated "Am.Jur.", is a legal encyclopedia that is relatively easy to read. It's a good starting point for someone unfamiliar with a particular area of law. Am.Jur. is not commonly cited in either law review articles or court opinions. 3. Restatements of the Law, is an authoritative source, which summarizes the result of many reported court cases in the USA. The Restatements are written by a large committee of legal scholars, eminent litigators, and judges. The Restatements function as a statutory codification of the common law, i.e., law made by judges' decisions. In contrast to ALR and Am.Jur., the Restatements are commonly cited in scholarly articles and opinions of courts. 4. Treatises written by law professors and other respected authorities. Examples include: William L. Prosser, TORTS, (4th ed. 1971). Arthur Linton Corbin, CONTRACTS, § 1374 (1962). 5. Articles in law reviews. Most law reviews are published by a law school. A few law reviews are published by professional societies, such as the American Bar Association. Articles often advocate change(s) in law, which need to be distinguished from the current law. 6. Since the year 1941, West publishes U.S. CODE CONGRESSIONAL AND ADMINISTRATIVE NEWS, (abbreviated "U.S.C.C.A.N."), which includes the legislative history of statutes passed by the U.S. Congress. Such material is useful in understanding why a statute was passed, and possibly useful in interpreting words or phrases in the statute.
2. Citation of Court Opinions in the USA
The general form consists of a series of information in the following format for example: Roe v. Wade, 410 U.S. 113, 118 (1973). U.S. v. Carroll Towing Co., 159 F.2d 169 (2dCir. 1947). Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928). Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944). name of the parties The full name of the case at the trial court is always in the format Plaintiff v. Defendant in civil cases and Government v. Defendant in criminal cases. Some appellate courts (e.g., the U.S. Supreme Court) give the name as Appellant v. Appellee, which may be the reverse of the order of names at the trial court. Note that the names of the parties are always italicized when referring to the opinion of the court
in their case. See my further remarks below. In criminal cases where the government is formally listed as, for example, "People of California", omit "People of", or "State of", and use only the name of the state (e.g., California). Omit first and middle names of people. Omit the name of the second and subsequent plaintiffs and defendants, omit "et. al.", and omit alternative names for parties (e.g., "aka", "dba" "also known as" and "doing business as"). volume number When the volume number would be greater than 999, a second series is begun, and "2d" added to the name of the reporter. Similarly, when the volume number in the second series would be greater than 999, a third series is begun, and "3d" added to the name of the reporter. name of reporter Note that the name of the reporter is in regular font, neither underlined nor italicized, even though it is the title of a book. This is a departure from usual scholarly bibliographic format. The name of the reporter is always abbreviated when citing a case. The proper abbreviations follow: U.S. Reports, abbreviated "U.S." West's Supreme Court Reporter, abbreviated "S.Ct." Federal Reporter, abbreviated "F." Federal Supplement, abbreviated "F.Supp." Federal Rules Decisions, abbreviated "F.R.D." Atlantic, abbreviated "A." North Eastern, abbreviated "N.E." North Western, abbreviated "N.W." Pacific, abbreviated "P." South Eastern, abbreviated "S.E." Southern, abbreviated "S." South Western, abbreviated "S.W." West's California Reporter, abbreviated "Cal.Rptr." West's New York State Reporter, abbreviated "N.Y.S." page number of first page of the opinion [optional] comma followed by the specific page number where a quotation or particular holding is found. location and level of court This information may be omitted for citations to the U.S. Supreme Court, since it is obvious from the name of the reporter (e.g., U.S. or S.Ct. or L.Ed.). For opinions of a U.S. Court of Appeals, include the circuit number (e.g., "2dCir." or "9thCir.").
For opinions of federal trial courts, include the district. Some states have only one district (e.g., "D.Mass.") while other states may have two or three districts (e.g., "S.D.N.Y." for Southern District of New York State). For opinions of state supreme courts, use an abbreviation for the name of the state (e.g., "Cal." for California and "N.Y." for New York). For opinions of intermediate state appellate courts (i.e., courts between the trial court and state supreme court) use the abbreviation for the state followed by "App." (e.g., "Cal.App." for California). (This rule is a little too terse and oversimplified: the precise form is given in Table 1 of the Bluebook.) year opinion was issued or published Note that there is no comma between the name of the court and the year of the opinion. The citation to a single case always ends with a period. When one mentions a rule of law and cites to more than one case in which the rule is stated, the individual cases are separated by a semicolon, with a period after the last case in the citation. As stated in the Introduction to this handout, the proper format according to the Bluebook changes with time. One older form placed the identification of the court and the year of the opinion immediately after the name of the parties, for example: U.S. v. Carroll Towing Co., (2dCir. 1947) 159 F.2d 169. I have put a line through this example, so students will not follow this obsolete example.
short form of citation
After the full citation has been given at least once in the preceding five citations, or after the case has been discussed by name in the text, the case may be referred to by the name of one party. In picking that one name, never pick the name of a government (e.g., U.S., California, ...), never pick the name of a government official (e.g., Janet Reno, being sued in her official capacity as Attorney General), and avoid choosing a frequent litigant (e.g., NAACP). My personal preference in civil cases is to pick the name of the plaintiff at the trial court level, who may be either the appellant or appellee on appeal, unless the plaintiff has a common name like "Smith" or "Jones" or unless the plaintiff is anonymous (e.g., "Doe"). In criminal cases, one always uses the name of the defendant as the short name of the case. The short form of the citation has the following format: Palsgraf, 162 N.E. at 100. In this example, one cites a quotation or holding or fact that is located at page 100, without mentioning the first page number of the opinion.
citing an opinion that was later appealed
One must cite not only the opinion from which the quotation or holding was taken, but also cite the results (e.g., affirmed or reversed) of each appellate court that later considered the same case. This subsequent history of the case is important, because it strengthens the significance of the holding if affirmed, or vitiates the significance of the holding if reversed. It is a serious error to cite the opinion of a lower court that was later reversed by an appellate court, without explicitly mentioning the reversal, because the lower court's holding is no longer good law.
There are three common indicators of subsequent history: 1. aff'd for affirmed 2. rev'd for reversed 3. cert. den. for cases appealed to the U.S. Supreme Court, but which that Court declined to hear. This declining to hear may be an indication that the U.S. Supreme Court not only agreed with the lower court's opinion, but also saw no interesting legal issue worthy of discussion. There are several less common indicators of subsequent history: 4. aff'd without opinion when no published opinion is issued with the appellate court's decision 5. overruled by when the rule is changed in a subsequent case with different parties 6. rev'd on other grounds when the decision in that particular case was reversed, but without changing the particular rule of law that is cited. (Many cases involve more than one issue, so the decision of a lower court can be affirmed on one issue and reversed on another issue.) 7. on remand when a trial court again considers the case after the ruling of appellate court(s). This is generally the final disposition of the case. The full list of explanatory phrases is in Table 9 of the Bluebook. Note that if one cites the opinion of the highest court to hear a case, then one does not also need to cite the lower courts that heard the same case. One must cite only subsequent history, not previous history. For example, one may cite a U.S. Supreme Court opinion, or a state supreme court opinion that was not appealed to the U.S. Supreme Court, without mentioning any of the previous history. My general advice is to ignore the prior opinions, unless the case is really important: either it makes a new rule of law or it contains a holding that is unfavorable to your position. My experience is that reading the prior opinions of a case often provides facts that were omitted from later opinions, and those omitted facts sometimes change my view of the final decision. If I am only citing a fact that was mentioned in the opinion of a lower court (but not repeated in the opinion of a subsequent court hearing the same case), I generally do not give the subsequent history in that one citation, provided that a citation including subsequent history is located nearby. My practice is a departure from the accepted rule, but I think it makes sense.
citing a dissenting opinion
If one quotes from a dissenting opinion, one must indicate in the citation that the source is only a dissenting opinion, which is not law. One puts the name of the judge or justice who wrote the dissenting opinion plus the word "dissenting" in parenthesis at the end of the citation. For example: Connick v. Myers, 461 U.S. 138, 156 (1983)(Brennan, J., dissenting). Generally, one avoids quoting from dissenting opinions, unless one is arguing for a change in the law.
citing an unreported opinion
Unreported opinions are not law, but may be persuasive authority. The format is the same as for a reported case, except the volume number and name of the reporter is replaced with a citation to the electronic database. For example:
1991 WL 55402, at *3 cites a case available in WESTLAW but not in published reporters. This particular example was the 55402th item added to the WESTLAW computer database in 1991, and the citation is to page *3. If one is citing the whole case, then one would omit , at *3 because every case in an electronic database begins at page *1, there is no need to mention the first page number. In January 2001, West began publishing the Federal Appendix, which includes the opinions that were not selected by the U.S. Courts of Appeals for publication in the Federal reporter. Citations to this source are in the same format as citations to regular reported cases, the name of the volume is always abbreviated as "Fed.Appx." One can cite any credible source in an essay, but local rules of courts may prohibit citing to unpublished or unreported cases in a Brief filed in that court.
string cites
Sometimes one will cite more than one item to support a proposition, in what is called a "string cite". There is a rigid style for the order of the citations: a. Constitutions a. U.S. Constitution b. State Constitutions, arranged alphabetically by state c. constitutions of foreign nations d. charters of the United Nations and other international organizations b. Statutes a. U.S. federal statutes b. federal rules of evidence or procedure c. state statutes d. state rules of evidence or procedure c. Case Law a. U.S. Supreme Court b. U.S. Court of Appeals, and within this category: by order of the Circuit — First Circuit cases appear first, Eleventh Circuit cases appear last. c. U.S. District Court, and within this category: by alphabetical order of the states. d. State court cases, arranged by alphabetical order of the state. Within each state, that state's supreme court decisions appear first, decisions of intermediate appellate courts next, and decisions of trial courts appear last. d. Secondary materials a. Restatements of the Law b. Treatises (e.g., Prosser & Keeton, TORTS (5th ed. 1984); Corbin, CONTRACTS) c. Articles in Law Reviews Within each of the above categories of case law, the most recent case appears first, the oldest case appears last. The organizing principle is that the strongest authority appears first. For example, the U.S. Supreme Court appears before other courts, because it is the highest court in the USA. Similarly, recent cases are more authoritative than a musty old case that may have been ignored for tens of years, but never overturned.
The above order for string cites is from the Bluebook, but I do not like this rule and I do not follow this rule in my essays that are posted at my websites. Personally, I favor a strict chronological order, with the oldest case first, to clearly show the historical evolution of the law. Old cases are not necessarily "musty" — citing an old case shows that the law is well established, and not some recent quirk. A string cite as a single-spaced, fine-print footnote is useful for citing authorities to support an assertion that is commonly known amongst attorneys and judges. Because such string cites are difficult-to-read, I prefer to display a string cite as an indented list in the text (not as a footnote), with a blank line clearly separating each case. For example: There is a long line of cases on Heckler's Veto: 1. Terminiello v. City of Chicago, 337 U.S. 1 (1949) (speaker was arrested to prevent disturbance by crowd of approximately 1000 protesters). 2. Edwards v. Louisiana, 372 U.S. 229 (1963). 3. Cox v. Louisiana, 379 U.S. 536 (1965). 4. Brown v. Louisiana, 383 U.S. 131 (1966) (The first use by the U.S. Supreme Court of the phrase "heckler's veto" is in footnote 1 at page 133.). 5. Tinker v. Des Moines, 258 F.Supp. 971 (S.D.Iowa 1966), aff'd, 383 F.2d 988 (8thCir. 1967), rev'd, 393 U.S. 503, 508-509 (1969) (Fear of a disturbance in school was not adequate reason for school principals to forbid pupils to wear black armbands, as a symbol of their opposition to the war in Vietnam.). 6. Gooding v. Wilson, 405 U.S. 518 (1972). 7. Healy v. James, 408 U.S. 169 (1972). 8. Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992). Putting only one case per element in the indented list, and putting a blank line between elements is especially helpful when one also cites earlier opinions in the same case, as I did above in the abovecited Tinker case.
3. Citation of Statutes and Regulations
federal
The general form for federal statutes and regulations consists of a series of information in the following format, for example: 17 U.S.C. § 102. title number
name of statute or regulation Note that the name of the statute or regulation is in regular font, neither underlined nor italicized, even though it is the title of a book. This is a departure from usual scholarly bibliographic format. The name is always abbreviated as follows: United States Code, abbreviated "U.S.C." Code of Federal Regulations, abbreviated "C.F.R." § section number There is one blank space between the section symbol and the number. [optional] subsection It is conventional to denote subsections with lower-case letters of the alphabet. The second sublevel of organization uses numbers. The third sublevel uses upper-case letters. The fourth sublevel uses lower-case roman numerals. Enclose each level of organization in separate parentheses. For example: 17 U.S.C. § 102(a)(1). period at the end of the citation. Citations to U.S. Statutes at Large are in the following format: 48 Stats. 112, 113 (1933). Where 48 is the volume number, 112 is the first page number of the statute, 113 is the page number of the quoted material, and 1933 is the year that the statute was enacted. The U.S. Statutes at Large are cited when the history of a statute is discussed, but citations to the United State Code (abbreviated "U.S.C.") are more common in court cases.
state statutes
The format for citation to state statutes varies among the states, here are two examples: Illinois: Ill.Rev.Stat. ch. 3, para. 4. Massachusetts: Mass.Gen.L. ch. 3, § 4. The states in these two examples use the word "chapter" where the federal government uses the word "title". The statutes of California, Maryland, New York State, and Texas use words (e.g., "Education", "Penal") instead of title numbers, or chapter numbers, in their statutes. For example: Cal. Penal Code § ##. N.Y. Educ. Law § ##. where ## is an integer number.
4. Bluebook format for citing secondary sources
citation of books
The Bluebook has a really strange format for citing books that is a radical departure from scholarly practice in other fields. In a multi-volume book, the volume number is placed to the left of the author's name! This practice is not only confusing to nonlawyers, but also ugly. There is no good reason for
books to be cited differently by lawyers than by any other learned profession. The title of a book is set in small capitals. (Some wordprocessors have a command to automatically convert a block of normal text to small capitals.) Examples of citing books or chapters in books: • Michael P. Sullivan, Annotation, Products Liability: Electricity, 60 A.L.R.4th 732 (1988). • Leonard I. Reiser, Privacy, 62A AM.JUR.2d 623 (1990). • RESTATEMENT (SECOND) OF CONTRACTS § 206 (1981). • RESTATEMENT (SECOND) OF TORTS § 652A (1977). Some attorneys omit the "of" in citing the Restatement, but the Bluebook includes the "of", and the inclusion makes the title easier to read. • William L. Prosser, TORTS, (4th ed. 1971). • 6A Arthur Linton Corbin, CONTRACTS, § 1374 (1962). A citation to a specific item in a book can be by section number or by page number.
articles in periodicals
The Bluebook uses a format for citing articles in periodicals (e.g., law reviews and other scholarly journals) that is different from conventional scholarly bibliographic format. For example: • Warren & Brandeis, The Right to Privacy, 4 HARV.L.REV. 193, 196 (1890). • William L. Prosser, Privacy, 48 CAL.L.REV. 383 (1960). Note that: 1. 2. 3. 4. the author's name is in conventional order, not: last name, first name. the title of the article is in italics, not inside quotation marks the name of the periodical is in small capitals the volume number, name of the journal, page number(s), and year of publication are all given in the same format used for court cases.
After experimenting with different formats, I prefer the Bluebook format for volume and page numbers, because it is more compact than the traditional scholarly format (e.g., Vol. 4, p. 193). However, I prefer to put the title of an article in quotation marks, instead of italic typeface, since italics are traditionally reserved for titles of books. The really important thing in a citation is that a citation must accurately include all of the information that a reader needs to find and verify the source. The format of the citation is of secondary importance, although professional editors often care more about the format than the accuracy of the information, or the appropriateness of the author's choice of the cited source. articles/notes Papers published in law reviews are divided into two classes: 1. Articles are written by professors or practicing attorneys
2. Notes are written by law students. The distinction is one of rank. As one arrogant law professor once confided to me, "Who cares what a 25 year old kid thinks?" The traditional Bluebook form for citing a Note is to use the word Note in place of the author's name. Astounding! Just because of rank, the student is forced to be anonymous, even if he/she wrote an outstanding scholarly work. The difference between an author of a Note and an author of an Article may be as slight as both passing the bar examination and one or two years of experience as an attorney. Surely, this is not a significant difference that affects one's ability to synthesize legal principles from many cases, or to suggest better law. Indeed, court opinions that cite law reviews often also cite Notes, which is proof that some Notes are taken seriously. In writing essays for my web sites during 1996-99, I used the law student's name in place of the word Note, in defiance of the traditional Bluebook rule, and to give the author of a good Note proper recognition for his/her work. The sixteenth edition of the Bluebook abandoned the traditional rule, in favor of writing the name of the student-author of the Note, followed by the word "Note" as, for example: J. Peter Shapiro & James F. Tune, Note, Implied Contract Rights to Job Security, 26 Stanford L.Rev. 335 (1974). This citation form was used by Judge Schiller at 737 A.2d 1250, 1256, n.12 (Pa.Super. 1999). Particularly when writing a memorandum of law, or a Brief to submit to a court, one should include the word "Note", to avoid misrepresenting that a Note is an Article.
Alternatives to the Bluebook
As mentioned in the introduction of this handout, the generally accepted style manual for legal citations in the USA is the Bluebook: A Uniform System of Citation, which is published by the editors of four prestigious law reviews at Columbia University, Harvard, Univ. of Pennsylvania, and Yale Law Schools. The Bluebook has a website. The Bluebook is really only a style manual for authors of law reviews. There is a brief section in the Bluebook titled "Practitioners' Notes" that purports to give rules for style in both briefs filed in a court and legal memoranda. However, the Bluebook — which is written by law students who edit their school's law reviews — has no authority to establish rules for documents submitted to courts. Further, there are many objections to the rules in the Bluebook. I mentioned above my distaste for their rule on citing a multi-volume book, with the volume number to the left of the author's name, instead of a format consistent with citation style for court cases and law reviews, in which the volume number goes to the left of the name of the book. There are some alternatives to the Bluebook, but these alternatives are not commonly used in the legal profession: 1. The American Bar Association (ABA) has created the Uniform Citation Standards. 2. The Association of Legal Writing Directors (ALWD) has published a citation manual for use in teaching students in the first semester of law school. The ALWD publication simplifies some of the Bluebook rules and removes some of the inconsistencies among the Bluebook rules. And, unlike the Bluebook, the ALWD includes the citation rules promulgated by each state in the USA.
3. The University of Chicago Manual of Legal Citation, printed in 1989 by Lawyers' Cooperative Publishing Company. The Chicago Manual is often called "The Maroon Book". 4. Various state supreme courts have published a style manual, some of which are available on the Internet. For example: • Massachusetts • New Jersey • New York The common Bluebook style for citing court cases mentions page numbers in a printed copy of an opinion, contained in a bound volume on a library shelf. These bound volumes are published by West (e.g., the seven regional reporters, Federal Reporter, and Federal Supplement), the U.S. Reports, or an official reporter that is published by a state. WESTLAW, which is West's collection of online databases, and the LEXIS online databases, both contain page numbers in the common printed reporters, so these online databases are substitutes for printed copies in bound volumes. In contrast, the ABA style for citing court cases cites to a paragraph number in each opinion, instead of page numbers in the bound volume of a reporter. The ABA style is thus independent of printed reporters, most of which are proprietary products of West Publishing Company. The ABA style — which the Bluebook calls the "public domain format" — will become more important as attorneys find cases from a variety of different sources on the Internet. I expect to see courts post all of their opinions at their own website, instead of relying on West or Lexis to publish the opinions, but courts have been glacially slow to embrace the Internet. Personally, I like references to generic sources, instead of references to a proprietary product. However, it is an established fact that West Publishing Company is the dominant source of reported court opinions in the USA. In September 2000, the seven regional reporters, F.Supp., and the Federal Reporter — all published by West — occupied 16631 volumes on library shelves. It will be a long time before any other source scans all of those old volumes (or purchases a license to West's database); deletes West's proprietary synopsis, deletes references to West's key numbers, and deletes West's headnotes from each opinion; then inserts paragraph numbers, and makes those old opinions available online. Therefore, I expect attorneys to continue to cite to the page numbers in West's Reporters for a long time.
5. Legal Writing Style
Legal writing is a type of scholarly writing by an educated person, so the comments in my handout, Technical Writing, and also in my other essay on writing are also applicable to legal writing. However, there are a few matters of style that are unique to legal writing; some of these are discussed below. I recommend the following books: • The Bluebook: A Uniform System of Citation. (I do not like many of the rules in this book, but it is the conventional authority on style of citation in legal writing.) The publisher of the Bluebook has a website. • BLACK'S LAW DICTIONARY, published by West, is the standard legal dictionary in the USA.
• Bryan A. Garner, THE ELEMENTS OF LEGAL STYLE, published by Oxford University Press in 1991, is readable and his advice is good. • Bryan A. Garner, A DICTIONARY OF MODERN LEGAL USAGE, also published by Oxford University Press, is a useful reference book.
plain English is better
There are two opposing points of view about legal writing style. The traditionalists advocate bloated or archaic legal prose, such as the following examples: Wherefore, the party of the first part and the party of the second part do covenant and agree .... Further, affiant sayeth not. Such writing deserves to be set in a fancy black letter typeface, then ridiculed. The modernists, led by Bryan Garner, whose books I mentioned above, advocate writing in plain English. I am firmly in the modernists camp. Traditionalist attorneys have sometimes commented that my writing "doesn't look like it was written by a lawyer". They are criticizing me, I take it as a compliment. Having advocated using plain English, I must also say that it is entirely appropriate to use conventional legal terms-of-art (e.g., due process, res judicata, amicus curiae, spoliation of evidence, etc.), even though someone without a legal education will probably not understand these terms. I do object to using an uncommon word where there is a common synonym with equivalent meaning (e.g., I object to eleemosynary when one could use charitable or nonprofit.). But, if an uncommon word has a nuance that makes it more appropriate, then use the uncommon word without hesitation. Gardner, in The Elements of Legal Style at page 38, says "Arguments against big words have a way of descending into anti-intellectualism, so we ought to recognize that a liberal use of the English vocabulary ought not to be stifled."
specific comments on legal style
capitalization The names or designation of the parties in a court case always begin with an upper-case first letter. This is obvious when the parties are called by their real name (e.g., Myers), but it is also true when the parties are called by their role in the case (e.g., Plaintiff, Defendant, Appellant, etc.). On the other hand, if one is speaking of a plaintiff or defendant in general, then the word has a lower-case first letter. Consider the following examples of the distinction between Plaintiffs and plaintiffs: This is the only cloud seeding case in the USA in which plaintiffs won. The above sentence means that different plaintiffs (e.g., Slutsky, Duncan, Lunsford, Saba, ..., etc.) each filed one case, but the plaintiffs lost in all but one case. This is the only cloud seeding case in the USA in which Plaintiffs won. The above sentence means that one group of Plaintiffs filed several court cases, and those Plaintiffs lost all but one case. The name of a party in italics (e.g., Myers) is a short way of referring to the written opinion of the court that heard the case in which Myers (N.B. no italics) was a party (i.e., the Appellee in Connick v. Myers,
a famous U.S. Supreme Court case on freedom of speech for government employees). Note the distinction between the italics and plain typeface: italics designates the opinion of a court, plain typeface designates the person. The word Court has an upper-case C whenever it refers to either: 1. the U.S. Supreme Court, 2. the full name of the court (e.g., "the U.S. Court of Appeals for the First Circuit"), or 3. the specific court that receives the document (i.e., in a document written for submission to a court). innocent ? A criminal court never finds a defendant to be "innocent". The result in a criminal court can only be "guilty" or "not guilty". Journalists often write that a defendant pled "innocent" or a jury found a defendant "innocent", but the correct phrase is "not guilty". There are only three possible pleas: 1. guilty, which means that the state does not need to prove its case, and the court only needs to decide the punishment of the defendant. 2. not guilty. 3. nolo contendere, in which the defendant does not admit his/her guilt, but also does not demand that the state prove its case. The court then decides the punishment of the defendant. The nolo plea is allowed only with the approval of the judge. "Innocent" is not a possible plea in a court in the USA. conclusory phrases Be careful of using words such as "unfair, unjust, malicious". Those words express a conclusion, not a fact. The conventional names of many torts have such words included: unfair competition, wrongful death, malicious prosecution, etc. It is not adequate to merely assert unfairness or malice — one must provide evidence that leads a reasonable person to that conclusion. signal phrases The Bluebook says that "signal" phrases in footnotes or citations in text ("See, see also, accord, but see, compare, contra, see generally, cf., e.g.") are italicized. This Bluebook rule conflicts with generally accepted scholarly practice in other disciplines (e.g. The Chicago Manual of Style, the Modern Language Association Style Manual), and I think the result looks strange, so I refuse to follow this Bluebook rule. rules of style Lawyers in the USA sometimes appear to follow different rules of style from other users of English: 1. Most lawyers do not know the difference between that and which, to introduce clauses. See my handout on Technical Writing. 2. Lawyers generally consider or to be exclusive, while scientists and logicians consider or to be inclusive. See my handout on Technical Writing. 3. Lawyers commonly omit the comma before the last item in a list of items. As Bryan Garner says
in his book, The Elements of Legal Style, pages 17-18, the omission of a comma before and can cause ambiguity. 4. Judges use the subjunctive mood of verbs when appropriate more frequently than other learned professionals in the USA. I like the subjunctive mood, but it is rarely used in the USA, even among university professors and other educated people.
out-of-place technical jargon
From time to time, one sees allusions in court opinions to technical words or phrases from mechanics, electricity, magnetism, nuclear physics, etc. Such allusions are objectionable because they are jarring to the reader (i.e., they stick out like a sore thumb) and — to a scientifically literate reader — they show that the writer does not understand scientific terms. The latter point raises the question, if the writer uses scientific terms that the writer does not understand, then what else in the document has a weak justification? In the interest of keeping this essay short, I have posted examples of Technical Babble by judges in the USA in a separate document.
This document is at first posted 30 July 2000, last modified 26 May 2009. Go to my collection of links to legal resources on the Internet. Return to my personal homepage.
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U.S. Supreme Court
Rundle v. Delaware & Raritan Canal Company, 55 U.S. 14 How. 80 80 (1852)
Rundle v. Delaware & Raritan Canal Company 55 U.S. (14 How.) 80 ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY Syllabus By the law of Pennsylvania, the River Delaware is a public navigable river, held by its joint sovereigns in trust for the public. Riparian owners in that state have no title to the river or any right to divert its waters unless by license from the states.
Such license is revocable, and in subjection to the superior right of the state to divert the water for public improvements, either by the state directly or by a corporation created for that purpose. The proviso to the provincial acts of Pennsylvania and New Jersey, of 1771 does not operate as a grant of the usufruct of the waters of the river to Adam Hoops and his assigns, but only as a license, or toleration of his dam. As, by the laws of his own state, the plaintiff could have no remedy against a corporation authorized to take the whole waters of the river for the purpose of canals, or improving the navigation, so neither can he sustain a suit against a corporation created by New Jersey for the same purpose, who have taken part of the waters. The plaintiffs, being but tenants at sufferance in the usufruct of the water to the two states who own the river as tenants in common, are not in a condition to question the relative rights of either to use its waters without consent of the other. This case is not intended to decide whether a first licensee for private emolument can support an action against a later licensee of either sovereign or both, who, for private purposes, diverts the water to the injury of the first. The facts in the case are set forth in the opinion of the Court. Page 55 U. S. 87 MR. JUSTICE GRIER delivered the opinion of the Court. The plaintiffs in error, who were plaintiffs below, are owners Page 55 U. S. 88 of certain mills in Pennsylvania opposite to the City of Trenton, in New Jersey. These mills are supplied with water from the Delaware River by means of a dam extending from the Pennsylvania shore to an island lying near and parallel to it and extending along the rapids to the head of tidewater. The plaintiffs, in their declaration, show title to the property under one Adam Hoops, who had erected his mill and built a dam in the river previous to the year 1771. In that year, the Provinces of Pennsylvania and New Jersey, respectively, passed acts declaring the River Delaware a common highway for purposes of navigation up and down the same, and mutually appointing commissioners to improve the navigation thereof, with full power and authority to remove any obstructions whatsoever, natural or artificial, and subjecting to fine and imprisonment any person who should set up, repair, or maintain any dam or obstruction in the same, provided "that nothing herein contained shall give any power or authority to the commissioners herein appointed, or any of them, to remove, throw down, lower, impair, or in any manner to alter a mill dam erected by Adam Hoops, Esq., in the said River Delaware between his plantation and an island in the said river nearly opposite to Trenton, or any mill dam erected by any other person or persons in the said river, before the passing of this act, nor to obstruct, or in any manner to hinder the said Adam Hoops, or such other person or persons, his or their heirs and assigns from maintaining, raising, or repairing the said dams respectively or from taking water out of the said river for the use of the said mills and waterworks erected as aforesaid, and none other." The declaration avers that by these acts of the provincial legislatures, the said Hoops, his heirs and assigns, became entitled to the free and uninterrupted enjoyment and privilege of the River Delaware for the use of the said mills &c., without diminution or alteration by or from the act of said Provinces, now States of Pennsylvania and New Jersey, or any person or persons claiming under them or either of them. Nevertheless, that the defendants erected a dam in said river above plaintiffs' mills and dug a
canal and diverted the water, to the great injury &c. The defendants are a corporation chartered by New Jersey for the purpose of "constructing a canal from the waters of the Delaware to those of the Raritan, and of improving the navigation of said rivers." They admit the construction of the canal and the diversion of the waters of the river for that purpose, but demur to the declaration, and set forth as causes of demurrer: "That the Act of the Legislature of the then Province of Page 55 U. S. 89 Pennsylvania passed March ninth in the year of our Lord one thousand seven hundred and seventy one, and the Act of the then Province of New Jersey passed December twenty-first in the year of our Lord one thousand seven hundred and seventy-one, as set forth in said amended fifth count, do not vest in the said Adam Hoops or in his heirs or assigns the right and privilege to the use of the water of the River Delaware without diminution or alteration, by or from the act of the then Province, now State, of Pennsylvania, or of the then Province, now State, of New Jersey or of any person or persons claiming under either of them or of any person or persons whomsoever, as averred in the said amended fifth count of the said declaration. And also for that it does not appear, from the said amended fifth count that the same George Rundle and William Griffiths are entitled to the right and privilege to the use of the water of the River Delaware in manner and from as they have averred in the said amended fifth count of their declaration." "And also that as it appears from the said amended fifth count that the said River Delaware is a common highway and public navigable river, over which the States of Pennsylvania and New Jersey have concurrent jurisdiction, and a boundary of said states, these defendants insist that the legislative acts of the then Province of Pennsylvania and New Jersey, passed in the year of our Lord seventeen hundred and seventy one, as set forth in the said amended fifth count, were intended to declare the said River Delaware a common highway, and for improving the navigation thereof, and that the provision therein contained, as to the mill dam erected by Adam Hoops in the said River Delaware, did not and does not amount to a grant or conveyance of water power to the said Adam Hoops, his heirs or assigns, or to a surrender of the public right in the waters of the said river, but to a permission only to obstruct the waters of the said river by the said dam without being subjected to the penalties of nuisance; that the right of the said Adam Hoops was, and that of his assigns is, subordinate to the public right at the pleasure of the Legislature of Pennsylvania and New Jersey, or either of them." On this demurrer the court below gave judgment for the defendants, which is now alleged as error. It is evident that the extent of the plaintiff's rights as a riparian owner, and the question whether this proviso operates as the grant of a usufruct of the waters of the river, or only as a license of toleration of a nuisance, liable to revocation or subordinate to the paramount public right, must depend on the laws and customs of Pennsylvania as expounded by her own courts. It will be proper, therefore, to give a brief sketch of Page 55 U. S. 90 the public history of the river and the legislative action connected with it, as also of the principles of law affecting aquatic rights, as developed and established by the courts of that state. The River Delaware is the well known boundary between the States of Pennsylvania and New Jersey. Below tidewater, the river, its soil and islands, formerly belonged to the Crown; above tidewater, it was vested in the proprietaries of the coterminous provinces -- each holding ad medium filum aquae. Since the Revolution, the states have succeeded to the public rights both of the Crown and the proprietaries. Immediately after the Revolution, these states entered into the compact of 1783, declaring the Delaware
a common highway for the use of both and ascertaining their respective jurisdiction over the same. For thirty years after this compact, they appear to have enjoyed their common property without dispute or collision. When the legislature of either state passed an act affecting it, they requested and obtained the concurrence and consent of the other. Their first dispute was caused by an Act of New Jersey passed February 4, 1815, authorizing Coxe and others to erect a wing dam and divert the water for the purpose of mills and other machinery. The consent of the State of Pennsylvania was not requested; it therefore called forth a protest from the legislature of that state. This was followed by further remonstrance in the following year. A proposition was made to submit the question of their respective rights to the Supreme Court of the United States, which was rejected by New Jersey. After numerous messages and remonstrances between the governors and legislatures, commissioners were mutually appointed to compromise the disputes. But they failed to bring the matter to an amicable conclusion. The dispute was never settled, and the wing dam remained in the river. In 1824, New Jersey passed the first act for the incorporation of the Delaware & Raritan Canal Company, for which the company gave a bonus of $100,000. This act requires the consent of the State of Pennsylvania, and on application's being made to her legislature, she clogged her consent with so many conditions that New Jersey refused to accept her terms, returned the bonus to the company, and so the matter ended for that time. Both parties then appointed commissioners to effect, if possible, some compact or arrangement by which each state should be authorized to divert so much water as would be necessary for these contemplated canals. After protracted negotiations, these commissioners finally, in 1834, agreed upon terms, but the compact proposed by them was never ratified by either party. Page 55 U. S. 91 In the meantime, each state appropriated to itself as much of the waters of the river as suited its purpose. In 1827 and 1828, Pennsylvania diverted the River Lehigh, a confluent of the Delaware, and afterwards, finding that stream insufficient, took additional feeders for her canal, out of the main stream of the Delaware. On the 4th February, 1830, the Legislature of New Jersey passed the act under which the defendants were incorporated and in pursuance of which, they have constructed the dam and feeder, the subject of the present suit. The canals in both states, supplied by the river, are intimately and extensively connected with their trade, revenues, and general property -- while the navigation of the river above tidewater, and the rapids at Trenton, is of comparatively trifling importance, being used only at times of the spring freshets for floating timber down the stream when the artificial diversions do not affect the navigation. The practical benefits resulting to both parties, from their great public improvements appear to have convinced them that further negotiations, complaints, or remonstrances would be useless and unreasonable, and thus, by mutual acquiescence and tacit consent, the necessity of a more formal compact has been superseded. The law of Pennsylvania by which the title and rights of the plaintiffs must be tested differs materially from that of England and most of the other states of the Union. As regards her large fresh water rivers, she has adopted the principles of the civil law. In the case of Carson v. Blazer, the supreme court of that state decided that the large rivers, such as the Susquehanna and Delaware, were never deemed subject to the doctrines of the common law of England applicable to fresh water streams, but that they are to be treated as navigable rivers; that the grants of William Penn, the proprietary, never extended beyond the margin of the river, which belonged to the public, and that the riparian owners have therefore no exclusive rights to the soil or water of such rivers ad filum medium aquae. In Shrunk v. Schuylkill Navigation Company, the same court repeats the same doctrine, and Chief Justice Tilghman, in delivering the opinion of the court, observes:
"Care seems to have been taken from the beginning to preserve the waters of these rivers for public uses both of fishery and navigation, and the wisdom of that policy is now more striking than ever, from the great improvements in navigation, and others in contemplation, to effect which, it is necessary to obstruct the flow of the water in some places and in others to divert its course. It is true that the state would have had a right to do these things for the public benefit even if the rivers had been private property, but then compensation must have been made to the Page 55 U. S. 92 owners, the amount of which might have been so enormous as to have frustrated or at least checked these noble undertakings." In the case of Monongahela Navigation Company v. Coons, the defendant had erected his mill under a license given by an act of the legislature in 1803 to riparian owners to erect dams of a particular structure, "provided they did not impede the navigation," &c.. The Monongahela Navigation Company, in pursuance of a charter granted them by the state, had erected a dam in the Monongahela, which flowed back the water on the plaintiff's mill in the Youghiogany and greatly injured it. And it was adjudged by the court that the Company were not liable for the consequential injury thus inflicted. The court, speaking of the rights of plaintiff consequent on the license granted by the act, of 1803, observed: "That statute gave riparian owners liberty to erect dams of a particular structure on navigable streams without being indictable for a nuisance, and their exercise of it was consequently to be attended with expense and labor. But was this liberty to be perpetual, and forever tie up the power of the state? Or is not the contrary to be inferred from the nature of the license? So far was the legislature from seeming to abate one jot of the state's control that it barely agreed not to prefer an indictment for a nuisance except on the report of viewers to the Quarter Sessions. But the remission of a penalty is not a charter, and the alleged grant was nothing more than a mitigation of the penal law." The case of Susquehanna Canal Company v. Wright confirms the preceding views and decides, "that the state is never presumed to have parted with one of its franchises in the absence of conclusive proof of such an intention." Hence a license, accorded by a public law to a riparian owner, to erect a dam on the Susquehanna River and conduct the water upon his land for his own private purposes is subject to any future provision which the state may make with regard to the navigation of the river. And if the state authorize a company to construct a canal which impairs the rights of such riparian owner, he is not entitled to recover damages from the company. In that case, Wright had erected valuable mills under a license granted to him by the legislature, but the court said: "He was bound to know that the state had power to revoke its license whenever the paramount interests of the public should require it. And in this respect a grant by a public agent of limited powers, and bound not to throw away the interests confided to it, is different from a grant by an individual who is master of the subject. To revoke the latter after an expenditure in the prosecution of it would be a fraud. But he who accepts a Page 55 U. S. 93 license from the legislature knowing that he is dealing with an agent bound by duty not to impair public rights does so at his risk, and a voluntary expenditure on the foot of it gives him no claim to compensation." The principles asserted and established by these cases are perhaps somewhat peculiar, but as they affect rights to real property in the State of Pennsylvania, they must be treated as binding precedents in this Court. It is clear also from the application of these principles to the construction of the proviso under consideration that it cannot be construed as a grant of the waters of a public river for private use or a
fee simple estate in the usufruct of them "without diminution or alteration." It contains no direct words of grant which would operate by way of estoppel upon the grantor. The dam of Adam Hoops was a nuisance when it was made, but as it did little injury to the navigation, the commissioners, who were commanded to prostrate other nuisances, were enjoined to tolerate this. The mills of Hoops had not been erected on the faith of a legislative license, as in the cases we have quoted, and a total revocation of it would not be chargeable with the apparent hardship and injustice which might be imputed to it in those cases. His dam continues to be tolerated, and the license of diverting the water to his mills is still enjoyed, subject to occasional diminution from the exercise of the superior right of the sovereign. His interest in the water may be said to resemble a right of common, which by custom is subservient to the right of the lord of the soil, so that the lord may dig clay pits, or empower others to do so, without leaving sufficient herbage on the common. Bateson v. Green, 5 T.R. 411. Nor can the plaintiff claim by prescription against the public for more than the act confers on him, which is at best impunity for a nuisance. His license, or rather toleration, gives him a good title to keep up his dam and use the waters of the river as against everyone but the sovereign, and those diverting them by public authority, for public uses. It is true that the plaintiff's declaration in this case alleges that the waters diverted by defendants' dam and canal are used for the purpose of mills and for private emolument. But as it is not alleged or pretended that defendants have taken more water than was necessary for the canal or have constructed a canal of greater dimensions than they were authorized and obliged by the charter to make, this secondary use must be considered as merely incidental to the main object of their charter. We do not, therefore, consider the question before us whether the plaintiff might not recover damages against an individual or private corporation diverting the water of this river Page 55 U. S. 94 to their injury for the purpose of private emolument only, with or without license or authority of either of its sovereign owners. The case before us requires us only to decide that by the laws of Pennsylvania, the River Delaware is a public navigable river, held by its joint sovereigns in trust for the public; that riparian owners of land have no title to the river or any right to divert its waters unless by license from the state. That such license is revocable and in subjection to the superior right of the state to divert the water for public improvements. It follows necessarily from these conclusions that whether the State of Pennsylvania claim the whole river, or acknowledge the State of New Jersey as tenant in common and possessing equal rights with herself, and whether either state, without consent of the other has or has not a right to divert the stream, it will not alter or enlarge the plaintiff's rights. Being a mere tenant at sufferance to both as regards the usufruct of the water, he is not in a condition to question the relative rights of his superiors. If Pennsylvania chooses to acquiesce in this partition of the waters for great public improvements or is estopped to complain by her own acts, the plaintiff cannot complain or call upon this Court to decide questions between the two states which neither of them sees fit to raise. By the law of his own state, the plaintiff has no remedy against a corporation authorized to take the whole river for the purpose of canals or improving the navigation, and his tenure and rights are the same as regards both the states. With these views, it will be unnecessary to inquire whether the compact of 1783 between Pennsylvania and New Jersey operated as a revocation of the license or toleration implied from the proviso of the colonial acts of 1771, as that question can arise only in case the plaintiffs' dam be indicted as a public nuisance. Nor is it necessary to pass any opinion on the question of the respective rights of either of these coterminous states to whom this river belongs to divert its waters without the consent of the other.
The question raised is not without its difficulties, but being bound to resolve it by the peculiar laws of Pennsylvania as interpreted by her own courts, we cannot say that the court below has erred in its exposition of them, and therefore Affirm the judgment. MR. JUSTICE McLEAN and MR. JUSTICE DANIEL dissented. MR. JUSTICE CATRON gave a separate opinion; and MR. JUSTICE CURTIS dissented from the judgment of the court, on the merits, but not from its entertaining jurisdiction. Page 55 U. S. 95 The following are the opinions of MR. JUSTICE CATRON and MR. JUSTICE DANIEL. MR. JUSTICE CATRON. My opinion is and long has been that the mayor and aldermen of a city corporation, or the president and directors of a bank, or the president and directors of a railroad company and of other similar corporations, are the true parties that sue and are sued as trustees and representatives of the constantly changing stockholders. These are not known to the public and not suable in practice by service of personal notice on them respectively, such as the laws of the United States require. If the president and directors are citizens of the state where the corporation was created, and the other party to the suit is a citizen of a different state or a subject or citizen of a foreign government, then the courts of the United States can exercise jurisdiction under the Third Article of the Constitution. In this sense I understood Letson's Case, and assented to it when the decision was made, and so it is understood now. If all the real defendants are not within the jurisdiction of the court, because some of the directors reside beyond it, then the Act of February 28, 1843, allows the suit to proceed regardless of this fact, for the reasons stated in Letson's Case. 43 U. S. 2 How. 597. If the United States courts could be ousted of jurisdiction and citizens of other states and subjects of foreign countries be forced into the state courts without the power of election, they would often be deprived, in great cases, of all benefit contemplated by the Constitution, and in many cases be compelled to submit their rights to judges and juries who are inhabitants of the cities where the suit must be tried, and to contend with powerful corporations in local courts where the chances of impartial justice would be greatly against them and where no prudent man would engage with such an antagonist if he could help it. State laws, by combining large masses of men under a corporate name, cannot repeal the Constitution; all corporations must have trustees and representatives, who are usually citizens of the state where the corporation is created, and these citizens can be sued and the corporate property charged by the suit; nor can the courts allow the constitutional security to be evaded by unnecessary refinements without inflicting a deep injury on the institutions of the country. MR. JUSTICE DANIEL. In the opinion of the Court just announced in this cause I am unable to concur. Were the relative rights and interests of the parties to this Page 55 U. S. 96 controversy believed to be regularly before this Court, I should have coincided in the conclusions of the majority for the reason that all that is disclosed by the record either of the traditions or the legislation of the States of Pennsylvania and New Jersey shows an equal right or claim on the part of either of those states to the River Delaware and to the uses to which the waters of that river might be applied. From such an equality in each of those states it would seem regularly to follow that no use or enjoyment of the waters of that river could be invested in the grantees of one of them to the exclusion of the like use
and enjoyment by the grantees of the other. The permission, therefore, from Pennsylvania to Adam Hoops or his assignees to apply the waters of the Delaware in the working of his mill, whatever estate or interest it might invest in such grantee as against Pennsylvania, could never deprive the State of New Jersey of her equal privilege of applying the waters of the same river, either directly, in her corporate capacity, or through her grantee, the Delaware & Raritan Canal Company. My disagreement with my brethren in this case has its foundation in a reason wholly disconnected with the merits of the parties. It is deducible from my conviction of the absence of authority, either here or in the circuit court, to adjudicate this cause, and that it should therefore have been remanded with directions for its dismission for want of jurisdiction. The record discloses the fact that the party defendant in the circuit court and the appellee before this Court is a corporation, styled in the declaration, "a corporation created by the State of New Jersey." It is important that the style and character of this party litigant, as well as the source and manner of its existence, be borne in mind, as both are deemed material in considering the question of the jurisdiction of this Court and of the circuit court. It is important, too, to be remembered that the question here raised stands wholly unaffected by any legislation, competent or incompetent, which may have been attempted in the organization of the courts of the United States, but depends exclusively upon the construction of the 2d section of the 3d article of the Constitution, which defines the judicial power of the United States -- first with respect to the subjects embraced within that power, and secondly with respect to those whose character may give them access, as parties, to the courts of the United States. In the second branch of this definition, we find the following enumeration as descriptive of those whose position as parties will authorize their pleading or being impleaded in those courts, and this position is limited to "controversies to which the United States are a party; Page 55 U. S. 97 controversies between two or more states -- between citizens of different states -- between citizens of the same state, claiming lands under grants of different states -- and between the citizens of a state and foreign citizens or subjects." Now it has not been and will not be pretended that this corporation can in any sense be identified with the United States or is endowed with the privileges of the latter, or if it could be, it would clearly be exempted from all liability to be sued in the federal courts. Nor is it pretended that this corporation is a state of this Union, nor, being created by, and situated within the State of New Jersey, can it be held to be the citizen or subject of a foreign state. It must be, then, under that part of the enumeration in the article quoted which gives to the courts of the United States jurisdiction in controversies between citizens of different states that either the circuit court or this Court can take cognizance of the corporation as a party, and this is, in truth, the sole foundation on which that cognizance has been assumed or is attempted to be maintained. The proposition, then, on which the authority of the circuit court and of this tribunal is based is this: the Delaware & Raritan Canal Company is either a citizen of the United States or it is a citizen of the State of New Jersey. This proposition, startling as its terms may appear either to the legal or political apprehension, is undeniably the basis of the jurisdiction asserted in this case and in all others of a similar character, and must be established or that jurisdiction wholly fails. Let this proposition be examined a little more closely. The term "citizen" will be found rarely occurring in the writers upon English law, those writers almost universally adopting, as descriptive of those possessing rights or sustaining obligations, political or social, the term "subject" as more suited to their peculiar local institutions. But in the writers of other nations and under systems of polity deemed less liberal than that of England, we find the term "citizen" familiarly reviving, and the character and the rights and duties that term implies particularly defined.
Thus, Vattel, in his 4th book, has a chapter, cap. 6th, the title of which is: "The concern a nation may have in the actions of her citizens." A few words from the text of that chapter will show the apprehension of this author in relation to this term. "Private persons," says he, "who are members of one nation may offend and ill treat the citizens of another; it remains for us to examine what share a state may have in the actions of her citizens and what are the rights and obligations of sovereigns in that respect." And again: "Whoever uses a citizen ill indirectly offends the state, which is bound to protect this citizen." The meaning of the term Page 55 U. S. 98 "citizen" or "subject," in the apprehension of English jurists, as indicating persons in their natural character in contradistinction to artificial or fictitious persons created by law, is further elucidated by those jurists in their treatises upon the origin and capacities and objects of those artificial persons designated by the name of corporations. Thus, Mr. Justice, in the 18th chapter of his 1st volume, holds this language: "We have hitherto considered persons in their natural capacities, and have treated of their rights and duties. But as all personal rights die with the person, and as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be inconvenient, if not impracticable, it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons who maintain a perpetual succession and enjoy a kind of legal immortality. These artificial persons are called 'corporations.'" This same distinguished writer, in the first book of his Commentaries 123, says, "The rights of persons are such as concern and are annexed to the persons of men, and when the person to whom they are due is regarded, are called simply 'rights;' but when we consider the person from whom they are due, they are then denominated, 'duties.'" And again, cap. 10th of the same book, treating of the "people," he says, "The people are either 'aliens' -- that is, born out of the dominions or allegiance of the Crown -- or 'natives' -- that is, such as are born within it." Under our own systems of polity, the term "citizen," implying the same or similar relations to the government and to society which appertain to the term, "subject" in England, is familiar to all. Under either system, the term used is designed to apply to man in his individual character and to his natural capacities -- to a being or agent possessing social and political rights and sustaining social, political, and moral obligations. It is in this acceptation only, therefore, that the term "citizen," in the article of the Constitution, can be received and understood. When distributing the judicial power, that article extends it to controversies between "citizens" of different states. This must mean the natural physical beings composing those separate communities, and can by no violence of interpretation be made to signify artificial, incorporeal, theoretical, and invisible creations. A corporation, therefore, being not a natural person, but a mere creature of the mind, invisible and intangible, cannot be a citizen of a state, or of the United States, and cannot fall within the terms or the power of the above mentioned article, and can therefore neither plead nor be impleaded in the courts of the United States. Against this position it may be urged that the Page 55 U. S. 99 converse thereof has been ruled by this Court, and that this matter is no longer open for question. In answer to such an argument, I would reply that this is a matter involving a construction of the
Constitution, and that wherever the construction or the integrity of that sacred instrument is involved, I can hold myself trammeled by no precedent or number of precedents. That instrument is above all precedents, and its integrity everyone is bound to vindicate against any number of precedents if believed to trench upon its supremacy. Let us examine into what this Court has propounded in reference to its jurisdiction in cases in which corporations have been parties, and endeavor to ascertain the influence that may be claimed for what they have heretofore ruled in support of such jurisdiction. The first instance in which this question was brought directly before this Court was that of Bank of the United States v. Deveaux, 5 Cranch 61. An examination of this case will present a striking instance of the error into which the strongest minds may be led whenever they shall depart from the plain, common acceptation of terms or from well ascertained truths for the attainment of conclusions which the subtlest ingenuity is incompetent to sustain. This criticism upon the decision in the case of Bank v. Deveaux may perhaps be shielded from the charge of presumptuousness by a subsequent decision of this Court hereafter to be mentioned. In the former case, the Bank of the United States, a corporation created by Congress, was the party plaintiff, and upon the question of the capacity of such a party to sue in the courts of the United States this Court said, in reference to that question, "The jurisdiction of this Court being limited, so far as respects the character of the parties in this particular case, to controversies between citizens of different states, both parties must be citizens, to come within the description. That invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen, and consequently cannot sue or be sued in the courts of the United States unless the rights of the members in this respect can be exercised in their corporate name. If the corporation be considered as a mere faculty, and not as a company of individuals who, in transacting their business, may use a legal name, they must be excluded from the courts of the Union." The Court having shown the necessity for citizenship in both parties in order to give jurisdiction, having shown further, from the nature of corporations, their absolute incompatibility with citizenship, attempts some qualification of these indisputable and clearly stated positions, which, if intelligible at all, must be taken as wholly subversive of the positions so laid down. After stating the requisite of citizenship and showing that a Page 55 U. S. 100 corporation cannot be a citizen, "and consequently that it cannot sue or be sued in the courts of the United States," the Court goes on to add, "unless the rights of the members can be exercised in their corporate name." Now it is submitted that it is in this mode only, viz., in their corporate name, that the rights of the members can be exercised; that it is this which constitutes the character, and being, and functions of a corporation. If it is meant beyond this that each member, or the separate members, or a portion of them, can take to themselves the character and functions of the aggregate and merely legal being, then the corporation would be dissolved; its unity and perpetuity, the essential features of its nature, and the great objects of its existence, would be at an end. It would present the anomaly of a being existing and not existing at the same time. This strange and obscure qualification attempted by the Court of the clear legal principles previously announced by it forms the introduction to and apology for the proceeding adopted by it by which it undertook to adjudicate upon the rights of the corporation through the supposed citizenship of the individuals interested in that corporation. It asserted the power to look beyond the corporation, to presume or to ascertain the residence of the individuals composing it, and to model its decision upon that foundation. In other words, it affirmed that in an action at law, the purely legal rights asserted by one of the parties upon the record might be maintained by showing or presuming that these rights are vested in some other person who is no party to the controversy before it. Thus stood the decision of Bank of the United States v. Deveaux, wholly irreconcilable with correct
definition and a puzzle to professional apprehension until it was encountered by this Court in the decision of Louisville & Cincinnati Railroad Company v. Letson, reported in 2 How. 497. In the latter decision, the Court, unable to untie the judicial entanglement of Bank v. Deveaux, seem to have applied to it the sword of the conqueror; but unfortunately, in the blow they have dealt at the ligature which perplexed them, they have severed a portion of the temple itself. They have not only contravened all the known definitions and adjudications with respect to the nature of corporations, but they have repudiated the doctrines of the civilians as to what is imported by the term "subject" or "citizen" and repealed, at the same time, that restriction in the Constitution which limited the jurisdiction of the courts of the United States to controversies between "citizens of different states." They have asserted that "a corporation created by and transacting business in a state is to be deemed an inhabitant of the state, capable of being treated Page 55 U. S. 101 as a citizen for all the purposes of suing and being sued, and that an averment of the facts of its creation, and the place of transacting its business, is sufficient to give the circuit courts jurisdiction." The first thing which strikes attention in the position thus affirmed is the want of precision and perspicuity in its terms. The Court affirms that a corporation created by, and transacting business within a state is to be deemed an inhabitant of that state. But the article of the Constitution does not make inhabitancy a requisite of the condition of suing or being sued; that requisite is citizenship. Moreover, although citizenship implies the right of residence, the latter by no means implies citizenship. Again, it is said that these corporations may be treated as citizens for the purpose of suing or being sued. Even if the distinction here attempted were comprehensible, it would be a sufficient reply to it that the Constitution does not provide that those who may be treated as citizens may sue or be sued, but that the jurisdiction shall be limited to citizens only -- citizens in right and in fact. The distinction attempted seems to be without meaning, for the Constitution or the laws nowhere define such a being as a quasicitizen, to be called into existence for particular purposes -- a being without any of the attributes of citizenship, but the one for which he may be temporarily and arbitrarily created, and to be dismissed from existence the moment the particular purposes of his creation shall have been answered. In a political or legal sense, none can be treated or dealt with by the government as citizens but those who are citizens in reality. It would follow, then, by necessary induction from the argument of the Court that as a corporation must be treated as a citizen, it must be so treated to all intents and purposes, because it is a citizen. Each citizen if not under old governments certainly does, under our system of polity, possess the same rights and faculties, and sustain the same obligations, political, social, and moral, which appertain to each of his fellow citizens. As a citizen, then, of a state or of the United States, a corporation would be eligible to the state or federal legislatures, and if created by either the state or federal governments, might, as a native born citizen, aspire to the office of President of the United States -- or to the command of armies, or fleets, in which last example, so far as the character of the commander would form a part of it, we should have the poetical romance of the specter ship realized in our Republic. And should this incorporeal and invisible commander not acquit himself in color or in conduct, we might see him, provided his arrest were practicable, sent to answer his delinquencies before a court martial, and subjected to the penalties Page 55 U. S. 102 of the articles of war. Sir Edward Coke has declared, that a corporation cannot commit treason, felony, or other crime; neither is it capable of suffering a traitor's or felon's punishment, for it is not liable to corporeal penalties -- that it can perform no personal duties, for it cannot take an oath for the due execution of an office; neither
can it be arrested or committed to prison, for its existence being ideal, no man can arrest it; neither can it be excommunicated, for it has no soul. But these doctrines of Lord Coke were founded upon an apprehension of the law now treated as antiquated and obsolete. His lordship did not anticipate an improvement by which a corporation could be transformed into a citizen, and by that transformation be given a physical existence, and endowed with soul and body too. The incongruities here attempted to be shown as necessarily deducible from the decisions of the cases of Bank of the United States v. Deveaux and of Cincinnati & Louisville Railroad Company v. Letson afford some illustration of the effects which must ever follow a departure from the settled principles of the law. These principles are always traceable to a wise and deeply founded experience; they are therefore ever consentaneous and in harmony with themselves and with reason, and whenever abandoned as guides to the judicial course, the aberration must lead to bewildering uncertainty and confusion. Conducted by these principles, consecrated both by time and the obedience of sages, I am brought to the following conclusions: 1st. That by no sound or reasonable interpretation, can a corporation -- a mere faculty in law, be transformed into a citizen or treated as a citizen. 2d. That the second section of the Third Article of the Constitution, investing the courts of the United States with jurisdiction in controversies between citizens of different states, cannot be made to embrace controversies to which corporations and not citizens are parties, and that the assumption by those courts of jurisdiction in such cases must involve a palpable infraction of the article and section just referred to. 3d. That in the cause before us, the party defendant in the circuit court having been a corporation aggregate created by the State of New Jersey, the circuit court could not properly take cognizance thereof, and therefore this cause should be remanded to the circuit court with directions that it be dismissed for the want of jurisdiction. Order This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Page 55 U. S. 103 District of New Jersey, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this Court, that the judgment of the said circuit court in this cause be and the same is hereby affirmed with costs.
Case Cites
Phil D. I simply want to depict some of the case cites available to everyone in support of their fight to regain their property and their rights as Sovereign people on the land. This material has been accumulated over a period of time by several interested individuals. I think there is value in this and should be utilized by as many people as you can get it to. If you have corrections or additions please let me know. You can contact me at philerd@
An interpretation of the Maine Rules of Civil Procedure presents a question of law subject to a de novo review. (a) The purpose of
I have to find the proper way to notice case cites in my material to make them acceptable in court. I believe they must be Italicized and only the case underlined and not the “cite itself.”
Maine Rule of Civil Procedure Rule 17(a) [1978] is to ensure that the party who asserts a cause of action possesses, under substantive law, the right sought to be enforced. Rule 17(a) allows circuit courts to hear only those suits brought by persons who possess the right to enforce a claim and who have a significant interest in the litigation. The requirement that claims be prosecuted only by a real party in interest[1] enables a responding party to avail himself of evidence and defenses that he has against the real party in interest, to assure him of finality of judgment, and to protect him from another suit later brought by the real party in interest on the same matter. In its modern formulation, Rule 17(a) protects a responding party against the harassment of lawsuits by persons who do not have the power to make final and binding decisions concerning the prosecution, compromise, and settlement of a claim. 17(a) has been revised to include[2]. AND I have found the proper method for case cites[3], though I will follow the old scholarly format of underlined italicized format.
“Attorneys can't testify; statements of counsel in brief or in oral argument are not facts before the court.” – United States v. Lovable 431 U.S. 783,97 S. 2004, 52 L. Ed. 2d 752 and Gonzales v. Buist 224 U.S. 126. 56 L.. 693. 32. Ct. 463.S. "An attorney for the plaintiff cannot admit evidence into the court. He is either an attorney or a witness," and, "Statements of counsel in brief or in argument are not facts before the court." – Trinsey v. Pagliaro D.C. Pa. (1964), 229 F. Supp. 647 A Corporation cannot sue the living man, PERIOD. Again, you can use this in every case where a Bank, Vendor, is trying to sue you! They don't want you to know this! – Rundle v. DELAWARE & RARITAN CANAL CO. (1853) Unless you are one who thinks (ERIE RAILROAD CO. V. TOMPKINS, 304 U. S. 64 (1938) -- US Supreme ...) removes the validity of cases prior to 1938 then See for yourself, just click the link; Rundle v. DELAWARE & RARITAN CANAL CO. (1853)[4] If this decision removes the ability to render case cites prior to those after 1938, then why are case cites prior to 1938 used anywhere? All codes, rules and regulations are applicable to the government authorities only, not human/Creators in accordance with Gods laws. All codes, rules and regulations are unconstitutional and lacking in due process. – Rodriques v Ray Donavan (U.S. Department of Labor, 769 F. 2d 1344, 1348 (1985) and see – JONES v. MAYER CO., 392 U.S. 409 (1968), which states, “In plain and unambiguous terms, 1982 grants to all citizens,
without regard to race or color, "the same right" to purchase and lease property "as is enjoyed by white citizens." As the Court of Appeals in this case evidently recognized, that right can be impaired as effectively by "those who place property on the market" as by the State itself.” I have copy as it
pertains to 42 USC 1982
In your full disclosure request, ask your local representative for the legal documents that allow them t
Mere good faith assertions of power and authority (jurisdiction) have been abolished. –
Owens v. The City of Independence (1980)
In closing, it is important to remember that they are not entitled to qualified immunity from liability b
Government jurisdiction does not extend into or onto real or private property.. The right to purchase [and hold] property is a fundamental right of citizenship beyond the powers of the States to deny to any citizen. Property ownership cannot be cause for government to force or coerce title-holder( s) of property to do anything against his or her will. The title-holder has full control over their property and has the right to non- interference from all other parties. – Beech Grove Investment v. Michigan Civil Rights Commission, 157 North Western Reporter, 2d Series, pgs 213-232 (1982) (Perhaps we need to look at transfers of Property Title or Property Deed)
None of the above mentions FRCP 17(a) Ratification of Commencement & Real Party in Interest. Which was v
RULE 60. RELIEF FROM JUDGMENT OR ORDER (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc.... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void;... (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., Sec. 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill or review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. A motion to set aside a judgment as void for lack of jurisdiction is not subject to the time
limitations of Rule 60(b). See – Garcia v. Garcia, 712 P.2d 288 (Utah 1986). There is only an immaterial procedural difference between the relief sought pursuant to Rule 60(b) and the relief sought in an independent action. – Hadden v. Rumsey Prods., 196 F.2d 92 (2d Cir. 1952); 7 Moore's Federal Practice, § 60.38(3) (2d ed. 1971) A judgment is void, and therefore subject to relief under Rule 60(b)(4), only if the court that rendered judgment lacked jurisdiction or in circumstances in which the court's action amounts to a plain usurpation of power constituting a violation of due process. – United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990) Where Rule 60(b)(4) is properly invoked on the basis that the underlying judgment is void, "'relief is not a discretionary matter; it is mandatory.'" – Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994) (quoting V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 n.8 (10th Cir. 1979)). In order for a judgment to be void, there must be some jurisdictional defect in the court's authority to enter the judgment, either because the court lacks personal jurisdiction or because it lacks jurisdiction over the subject matter of the suit. – Puphal v. Puphal, 105 Idaho 302, 306, 669 P.2d 191, 195 (1983); Dragotoiu, 133 Idaho at 647, 991 P.2d at 379. A judgment rendered by a court without personal jurisdiction over the defendant is void. It is a nullity. [A judgment shown to be void for lack of personal service on the defendant is a nullity.] – Sramek v. Sramek, 17 Kan. App. 2d 573, 576-77, 840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993). "Where there are no depositions, admissions, or affidavits the court has no facts to rely on for a summary determination." – Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647. "A court cannot confer jurisdiction where none existed and cannot make a void proceeding valid. It is clear and well established law that a void order can be challenged in any court", – OLD WAYNE MUT. L. ASSOC. v. McDONOUGH, 204 U. S. 8, 27 S. Ct. 236 (1907). "The law is well-settled that a void order or judgment is void even before reversal", VALLEY v. NORTHERN FIRE & MARINE INS. CO., 254 u.s. 348, 41 S. Ct. 116 ( 1920 ) "Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities ; they are not voidable, but simply void, and this even prior to reversal." – WILLIAMSON v. BERRY, 8 HOW. 945, 540 12 L. Ed. 1170, 1189 ( 1850 ). "Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but rather should dismiss the action." – Melo v. U.S., 505 F 2d 1026
"There is no discretion to ignore lack of jurisdiction." – Joyce v. U.S. 474 2D 215. "The burden shifts to the court to prove jurisdiction." – Rosemond v. Lambert, 469 F 2d 416 "Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted." – Latana v. Hopper, 102 F. 2d 188; Chicago v. New York 37 F Supp. 150 "The law provides that once State and Federal Jurisdiction has been challenged, it must be proven." 100 S. Ct. 2502 (1980) "Jurisdiction can be challenged at any time." Basso v. Utah Power & Light Co. 495 F 2d 906, 910. "Defense of lack of jurisdiction over the subject matter may be raised at any time, even on appeal." Hill Top Developers v. Holiday Pines Service Corp. 478 So. 2d. 368 (Fla 2nd DCA 1985) "Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted." Lantana v. Hopper, 102 F. 2d 188; Chicago v. New York, 37 F. Supp. 150. "Once challenged, jurisdiction cannot be assumed, it must be proved to exist." Stuck v. Medical Examiners 94 Ca 2d 751. 211 P2d 389. "Jurisdiction, once challenged, cannot be assumed and must be decided." Maine v Thiboutot 100 S. Ct. 250. "The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings." Hagans v Lavine 415 U. S. 533.
CPLR
CPLR § 3215(f) by providing an Affidavit of Default, Affidavit of Facts Constituting the Claim and the Amount Due, Affidavit of Attorney that Defaulting Defendant Is Not in Military Service
CPLR § 3215 Default judgment Lamb v Moody, 2009 NY Slip Op 04031 (App. DIv., 2nd, 2009)
In support of their motion for leave to enter a default judgment against the respondent upon his failure to appear or to answer the complaint, the plaintiffs failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts as required by CPLR 3215(f) (see Peniston v Epstein, 10 AD3d 450; DeVivo v Sparago, 287 AD2d 535, 536; Fiorino v Yung Poon Yung, 281 AD2d 513). Accordingly, the Supreme Court properly denied the motion.
CPLR § 3215 Default judgment (f) Proof
CPLR R 306 Proof of service (a) Generally Jian Zheng v Evans, 2009 NY Slip Op 04863 (App. Div., 2nd, 2009) In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs produced only an attorney's affirmation offering speculation, unsupported by any evidence, that the defendants acted in bad faith and failed to abide by the terms of the contract of sale (see Cordova v Vinueza, 20 AD3d 445). Moreover, the plaintiffs' contention that the granting of summary judgment was premature is without merit. The plaintiffs failed to "show more than a mere hope that [they] might be able to uncover some evidence during the discovery process," nor did they show that their "ignorance was unavoidable and that reasonable attempts were made to discover the facts which would give rise to a triable issue of fact" (Companion Life Ins. Co. of N.Y. v All State Abstract Corp., 35 AD3d 519, 521). [*2] The Supreme Court also properly granted that branch of the defendants' motion which was for leave to enter a default judgment on their counterclaim for the return of their down payment upon the plaintiffs' failure to serve a reply to the counterclaim. The defendants submitted proof of service of their verified answer and counterclaim, proof of the facts constituting the counterclaim, and an affirmation from their attorney regarding the plaintiffs' default in serving a reply (see CPLR 3215[f]). In opposition, the plaintiffs failed to demonstrate that they served a reply on the defendants. Although they annexed a reply to their attorney's affirmation, it was not signed and they did not provide sufficient evidence of service (see CPLR 306[a], [d]; Celleri v Pabon, 299 AD2d 385, 385-86; cf. Dixon v Motor Veh Acc. Indem. Corp., 224 AD2d 382, 383-384). Moreover, the plaintiffs did not provide a reasonable excuse for their failure to timely serve a reply, and a potentially meritorious defense (see ACME ANC Corp. v Read, 55 AD3d 854, 855; Twersky v Kasaks, 24 AD3d 657, 658; cf. MMG Design, Inc. v Melnick, 35 AD3d 823).
The bold is mine. David M. Gottlieb
CPLR R. 3211(a)(5) Motion to dismiss for SOL (or other things, but SOL in this case) Kuo v Wall St. Mtge. Bankers, Ltd., 2009 NY Slip Op 06511 (App. Div., 2nd, 2009) The Supreme Court also correctly denied that branch of the defendant's motion which was to dismiss the complaint as barred by the statute of limitations. "To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the Statute of Limitations, a defendant bears the initial burden of establishing prima facie that the time in which to sue has expired . . . In order to make a prima facie showing, the defendant must establish, inter alia, when the plaintiff's cause of action accrued. Where, as here, the claim is for the payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the plaintiff possesses a legal right to demand payment'" (Swift v New York Med. Coll., 25 AD3d 686, 687, quoting Matter of Prote Contr. Co. v Board of Educ. of City of N.Y., 198 AD2d 418, 420 [citations [*2]omitted]; see Cimino v Dembeck, 61 AD3d 802; Matter of Schwartz, 44 AD3d 779). The defendant offered no evidence that would support a determination that the plaintiff had a legal right to demand payment of her compensation, in connection with the subject loan transaction, prior to the defendant's receipt of the commission fees from the borrower.
The bold is mine. David M. Gottlieb
VOID JUDGMENT
A void judgment is one that has been procured by extrinsic or collateral fraud or entered by a court that did not have jurisdiction over the subject matter or the parties. – Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987) A void judgment is to be distinguished from an erroneous one, in that the latter is subject only to direct attack. A void judgment is one which, from its inception, was a complete nullity and without legal effect. – Lubben v. Selective Service System, 453 F.2d 645, 649 (1st Cir. 1972) "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." – Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963). "In tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury." Syllabus Point 4, Gaither v. City Hospital, Inc., ___ W.Va. ___, ___ S.E.2d ___ (No. 23401 February 24, 1997). "Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection and justifies no acts performed under it ... No one is bound to obey an unconstitutional law and no courts are bound to enforce it." 16 Am Jur 2nd §177 "The general rule is that an unconstitutional act of the Legislature protects no one. It is said that all persons are presumed to know the law, meaning that ignorance of the law excuses no one; if any person acts under an unconstitutional statute, he does so at his peril and must take the consequences." 16 Am Jur 2d §178 "Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." – Miranda v. Arizona, 384 US 436 at 491.
The following is courtesy of Marc Fishman (he openly posted it on a group web site. I included it here as it has great bearing on the pursuits of those going into court.)...
Coram Nobis
Filing a Coram Nobis, challenging jurisdiction of the court as not being in accord with the Foreign Sovereign Immunity Act (FSIA). In short, since the court is a private subsidiary of a foreign corporation (the UNITED STATES), the court (private foreign corporation) must follow the law in accord with the FSIA. Since there is no way that they can do this in moving against a flesh and blood citizen of one of the republic states, their "judgments" are void ab initio and must be vacated.
The audio files that go along with the documentation can be retrieved from at the following URL: AIB Talk Radio - check the description column for FSIA to find the discussions (begins on 6-27-08) There is also some discussion on Radio Free America, also on TalkShoe: If you're interested in the documentation that goes along with this, use the FTP link below and get the two files in the FSIA directory: Step by Step for the Coram Nobis & Coram Non Judice
What this paper work does is this. It exposes the fraud that has been placed upon you the People of this Nation by our Courts. When the court is operating in it Corporate or a foreign state capacity it can only deal in a corporate setting. They can not bring a suit in law or equity against an American Citizen. This is an 11th amendment violation. That why you as a person, are defined as a Corporation, under the definition of the word ‘Person” in ever law book, Statute, Code, Regulation and law dictionary. The courts know they have no jurisdiction over the Citizen. Now by them having you listed as a Corporation. The laws for bring a claim upon a corporation is different as they are protected under the Foreign Sovereign Immunity Act under (FSIA)28 USC 1602 -1611 as stated this these documents. People lets not get into a debate on how due I spell my name. The issue is this. You can spell you name backwards if that how you fill. That not the issue. The issue is “THEY HAVE YOU LISTED AS A CORPORATION” That were the argument stops. How due they look at you. As a Corporation!!! Fine. As a Corporation and as that Corporation you now have immunity and right protected under the law. Where in the FSIA and the 11th amendment? That where. Is the court going to like it not likely? This is the same IMMUNITY that they have been hiding behind for years. That we did not know about. So these documents have been created in order to expose the fraud place upon the people of such
injustice and to wake the people up to the billions of dollars of tax money being embezzled by the court system. Through the mis-representation by the lawyers of the BAR Association and the misconduct of the Judicial Officers holding these elected or appointed public offices of trust and honor. We have a new discovery and it call Allegation of Jurisdiction. This needs to be the first document sends in on all new cases. This set the stage on the jurisdiction. The accuser is going to half to state what the jurisdiction is. When they claim the wrong jurisdiction then the Coram Nobis goes in. 1. Allegation of Jurisdiction now requires the accuser to define the jurisdiction that the court are going to operate in 2. First document you are going file is the Coram Nobis. A Coram Nobis tell the courts that an error has been made. Either by mistake or a by fraud by them. Definition of Coram Nobis Writ of error coram nobis A common-law writ, the purpose of which is to correct a judgment in the same court in which it was rendered, on the ground of error of fact, for which it was statutes provides no other remedy, which fact did not appear of record, or was unknown to the court when judgment was pronounced, and which ,if known would have prevented the judgment, and which was unknown, and could of reasonable diligence in time to have been otherwise presented to the court, unless he was prevented from so presenting them by duress, fear, or other sufficient cause. At common law in England, it issued from the Court of Kings Bench to a judgment of that court. Its principal aim is to afford the court in which an action was tried and opportunity to correct it own record with reference to a vital fact not known when the judgment was rendered. It is also said that at common law It lay to correct purely ministerial errors of the officers of the court 3. The second document you are going to filed is the Coram Non Judice. This now informs the court that they have no jurisdiction. Their judgment is void or fraud was placed upon court. The courts act as if there is no judge. Writ of coram non judice In presence of a person not a judge. When a suit is brought and determined in a court which has no jurisdiction in the matter, then it is said to be coram non judice, and the judgment is void. At common law in England, it issued from the Court of Kings Bench to a judgment of that court. Its principal aim is to afford the court in which an action was tried and opportunity to correct it own record with reference to a vital fact not known when the judgment was
rendered. It is also said that at common law It lay to correct purely ministerial errors of the officers of the court Now from here you must decide which document applies in Your case. Not all cases are the same. It depends on how the court decides to run. This how you determine on what document you file in next. Be low are a list of documents you must decide which is the one you need to file in next. People remember you will need to make this fit your case. Were it may said property and you are dealing with children then of course you use the word children instead of property. The hard work has already been done by creating these documents for you. You half to have some understanding of filing court papers in to the courts. Some of you this may be your very first time. This will make it rough for the first timers. Get with the people who give you these document and work with them. Also go to . In the search box in the upper right hand ware it said keyword or ID put in 48361. That the ID # for AIB RADIO. Click on AIB RADIO this will take you over to the recording of the FSIA recording for you to down load and listen to. There is no guarantee on this paper work other then you are now exposing the true corruption of the court system. It depends on how honorable or how dishonorable the court is going to be. So far dishonorable has the top place here. As everything that we do it is always your choice to file or not to file any documents. You need an understanding of this paper work and the documents to back it up. First document filed in Allegation of Jurisdiction is the first document filed in a new case. This will cause the accuser to define what the jurisdiction is for the court. When they fail to define the proper jurisdiction then file in the Coram nobis in on them. _______________________________________________________________________ JUDICIAL NOTICE; IN THE NATURE OF WRIT OF ERROR CORAM NOBIS & A DEMAND FOR DISMISSAL OR STATE THE PROPER JURISDICTION ________________________________________________________________________ Second Document filed in JUDICIAL NOTICE ;IN THE NATURE OF WRIT OF CORAM NON JUDICE & A DEMAND FOR DISMISSAL & A REVERSAL OF JUDGMENT FOR CONVICTION FOR LACK OF JURISDICTION. Third document filed in. JUDICIAL NOTICE; IN THE NATURE OF WRIT OF ERROR CORAM NON JUDICE & A DEMAND FOR DISMISSAL OR STATE THE PROPER JURISDICTION
Fourth document filed in. JUDICIAL NOTICE ;IN THE NATURE OF WRIT OF CORAM NON JUDICE & A DEMAND FOR DISMISSAL & OBJECTION FOR LACK OF JURISDICTION WITH EXHIBTS OF CONGRESSIONAL RECORDS &STATEMENT OF FACTS WITH CONLLUSION OF FACTS. Fifth document filed in. THE COURT IS CORAM NON JUDICE UNDER THE FOREIGN SOVEREIGN IMMUNTY ACT 28 USC 1608 RULE 4(j) CONCLUSION OF FACTS WITH LEGAL DEFINITION OF PERSON, CORPORATION & POLITICAL SUBDIVISION JUDICIAL NOTICE ;IN THE NATURE OF WRIT OF CORAM NON JUDICE & A DEMAND FOR DISMISSAL JUST CAUSE COURT IN DEFAULT AND LACK JURISDICTION PURSTANT TO FRCP Rule 4 (j) JUDICIAL NOTICE; THE COURT IS IN CORAM NON JUDICE UNDER THE FOREIGN SOVEREIGN IMMUNITY ACT PURSUANT TO FRCP 4 (j) 2NDNOTICE OF DEFAULT AND NOTICE OF CURE PRAY FOR SUMMARY JUDGMENT.
-- Marc H. Fishman MFishman@... "When you find yourself in a hole, the first thing to do is stop digging." PGP KeyID: 6C8E212E75CDBD79 PGP Key Fingerprint: E620 1F11 D3AC 6FEC 4CC5 8CA6 6C8E 212E 75CD BD79
Thank you for posting this Mark. I have been working on the Coram Nobis issue myself lately, and it's a topic that those who've been down the road to prison might want to research. On Fri, Aug 22, 2008 at 10:55 AM, sheisaceo wrote: I wasn't aware that we 'flame' here as I was hoping that this remained an ego-less forum. Thank you for this. I was busy with writs of habeas corpus and the crooks just keep finding ways to try to slime and weasel out of documents by refusal to file and even overt theft of the documents. You would not believe some of the antics of these people. They HAVE TO KNOW WHAT THEY ARE DOING IS ILLEGAL WITH WHAT THEY DO.
This is from their Yahoo Group:
Please visit & listen to the following 3 conference calls by Rod Class for an excellent presentation of how this strategy developed. You want to listen to: 1.) June 20 EPISODE 71 - FOREIGN RELATION & FOREIGN STATE 2.) July 11 EPISODE 75 - FSIA PART 3 CORPORATION 3.) July 19 EPISODE 78 - FOUNDATION OF THE FSIA
END NOTES BELOW
[1] Real Party in Interest Law & Legal Definition
A real party in interest is the person or entity whose rights are involved and stands to gain from a lawsuit or petition even though the plaintiff who filed suit is someone else, often called a "nominal" plaintiff. It is the person who will be entitled to benefits of a court action if successful; one who is actually and substantially interested in the subject matter, as opposed to one who has only a nominal, formal, or technical interest in or connection with it. It may be broadly defined as someone who may be adversely affected by the relief sought or the person or entity entitled to the benefits if the action is successful. Under the Federal Rules of Civil Procedure (FRCP), FRCP 17(a) provides that "every action shall be prosecuted in the name of the real party in interest", so that the named plaintiff must have, under the governing substantive law, the right sought to be enforced. The real party in interest is not necessarily the person who ultimately will benefit from the successful prosecution of the action. The following is an example of a state statute involving real parties interest: (a) "Except as otherwise provided in clauses (b), (c) and (d) of this rule, all actions shall be prosecuted by and in the name of the real party in interest, without distinction between contracts under seal and parol contracts. (b) A plaintiff may sue in his own name without joining as plaintiff or use-plaintiff any person beneficially interested when such plaintiff 1. is acting in a fiduciary or representative capacity which capacity is disclosed in the caption and in the plaintiff's initial pleading; or 2. is a person with whom or in whose name a contract has been made for the benefit of another. (c) Clause (a) of this rule shall not apply to actions where a statute or ordinance provides otherwise."
← Back [2] To avoid forfeitures of just claims, revised Rule 17(a) would provide that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed for correction of the defect in the manner there stated. ← Back [3] Legal Research and Citation Style in USA
Introduction
The format for citations to legal materials is different from the format for scholarly citations to books and periodicals in general. This handout is a terse guide to legal citation in the USA. The generally accepted style manual for legal citations in the USA is the Bluebook: A Uniform System of Citation, which is published by the editors of four prestigious law reviews at Columbia University, Harvard, Univ. of Pennsylvania, and Yale Law Schools. A copy of the Bluebook can be purchased in any law school bookstore. A comprehensive set of rules from the Bluebook is available on the Internet from Peter W. Martin at Cornell Law School. In contrast, this handout here contains a terse set of rules that generally agrees with the Bluebook, but does not contain all of the fine points and options in the Bluebook. Opinions of some courts use a different format from the Bluebook, but these alternative citation formats
contains the same information. Be aware that citations in annotated statutes and other law books may use a different bibliographic format from the Bluebook. Furthermore, the proper format according to the Bluebook changes with time, so old sources (both cases and law review articles) do not use the modern format for citation.
1. Sources of Legal Materials in USA
Statutes and Regulations in the USA
The U.S. Government publishes each statute enacted by the U.S. Congress in U.S. Statutes at Large. Except for doing historical research, a more convenient way to access federal statutes is to use the U.S. Code, which groups the original statute and all subsequent amendments together in one place. All statutes from the federal government are published by West in the United States Code Annotated. This Code is divided into fifty "titles": 15 is for Commerce and Trade, including trademark statutes 17 is Copyrights 18 is for all federal criminal statutes 26 is the Internal Revenue Code, which is the federal tax law 35 is for Patents 47 is for communications law: telephone, radio/television, etc. Each "title" may fill multiple volumes on a bookshelf. The regulations issued by agencies of the federal government, in order to implement law expressed in the statutes, is published in the Code of Federal Regulations. In addition, each state has its own collection of statutes and regulations. One frequently sees citations in opinions of state courts to decisions from other states, as the common law (i.e., judge-made law) does import rules from other states. In contrast, statutes of other states are irrelevant, because the only statutes that apply are the statutes in the state whose law is being applied. However, occasionally judges look to court opinions from other states in interpreting a word or phrase in a statute.
Reporters for Opinions of Federal Courts
The U.S. Government publishes U.S. Reports that contains the official version of all of the opinions of the U.S. Supreme Court. West publishes: • Supreme Court Reporter that contains all of the opinions of the U.S. Supreme Court since 1882. West's publication is issued several years before the official U.S. Reports appears, and so is useful for citing recent Supreme Court cases. • Federal Reporter contains all of the published opinions of the U.S. Courts of Appeals, plus the few published opinions of Federal District Courts from 1880 to 1932.
• Federal Supplement contains published opinions after 1932 of Federal District Courts, which are trial courts. • Federal Rules Decisions contains published opinions of Federal District Courts that pertain to the Rules of Civil (or Criminal) Procedure. These opinions are not also found in the Federal Supplement. Lawyer Cooperative Publishing Company, now owned by Lexis, publishes the Lawyer's Edition of the U.S. Supreme Court opinions.
West's Reporters for Opinions of State Courts
There are seven regional reporters: Atlantic: Pennsylvania, New Jersey, Maryland, Connecticut, Delaware, Rhode Island, Vermont, New Hampshire, Maine North Eastern: New York, Massachusetts, Illinois, Ohio, Indiana North Western: Michigan, Wisconsin, Minnesota, North and South Dakota, Nebraska, Iowa Pacific: Kansas, Oklahoma, and all states in and west of Montana, Wyoming, Colorado, and New Mexico South Eastern: Georgia, North and South Carolina, Virginia, West Virginia Southern: Florida, Alabama, Mississippi, Louisiana South Western: Texas, Missouri, Kentucky, Tennessee, Arkansas In addition to these regional Reporters, West publishes • California Reporter • New York State Reporter These two Reporters are not just extracts from the regional Reporters (i.e., Pacific for California and North Eastern for New York), but contain occasional opinions from other courts that are not found in the corresponding regional Reporters. A few observations on the West regional reporter system: • The Pacific Reporter was begun in 1883, when there was little legal activity in the 13 western states in the USA, plus Alaska and Hawaii, so it made sense then to bundle all of those states into one Reporter. • New York State and Massachusetts are in the North Eastern Reporter, not in the Atlantic Reporter that serves the surrounding states. • These regional reporters generally only contain published opinions of the state appellate courts, not state trial courts. In fact, it is rare to see a published opinion of a trial court in the USA, because such opinions have no precedential value. However, a few decisions of trial courts in the USA are published:
• Pennsylvania publishes a separate reporter, called Pennsylvania District and County Cases (abbreviated: Pa.D.&C.), that contains some decisions of trial courts • a few decisions of trial courts in New York state are published in West's New York State Reporter (N.Y.S.) • a few decisions of trial courts in New Jersey are published in the Atlantic reporter, the names of these trial courts are "New Jersey Superior Court Law Division" and "New Jersey Superior Court Chancery Division" • and, as mentioned above, some opinions of trial courts in the Federal court system are published in the Federal Supplement (F.Supp.).
misleading state court names
The highest state court in New York State is called the "Court of Appeals". The trial courts in New York State are called the "Supreme Court". The intermediate courts in New York State are called "Supreme Court, Appellate Division". Beware of this misleading nomenclature! In the federal courts, the Courts of Appeals are intermediate courts, between the trial courts and the U.S. Supreme Court. But in both New York and Maryland, their state Court of Appeals is the highest state court. In most states, the Superior Court is a trial court, which handles larger cases than the ordinary trial court. However, the Pennsylvania Superior Court is an intermediate appellate court, between the trial courts and the Pennsylvania Supreme Court.
parallel citations
In addition to these regional reporters from West Publishing, many states publish their own opinions in an official state reporter. A law library will typically have the official state reporter of the state in which the library is located, but not the official state reporters of distant states. The West regional reporters are the standard source for finding opinions of courts in the USA. Nonetheless, one often finds parallel citations to both West's regional reporter and the official state reporter, particularly in Briefs submitted to that state's court. Similarly, one often sees citations to opinions of the U.S. Supreme Court that cite in parallel to three different sources: 1. the official U.S. Reports, 2. West's Supreme Court Reporter (abbreviated "S.Ct."), and 3. Lawyer Cooperative Publishing Company's Lawyer's Edition. I prefer a citation only to U.S. Reports, if available; otherwise I only cite to S.Ct. The Lawyer's Edition includes the pagination to the other two editions.
secondary sources
The law in the USA is only expressed in constitutions, statutes, and opinions of appellate courts, which
are known as primary sources. Secondary sources collect and explain rules of law from the primary sources. There are several secondary sources commonly used by attorneys: 1. American Law Reports, abbreviated "A.L.R.", contains annotations on a particular topic, which list the important cases in state and federal courts on that topic, along with a terse synopsis of the facts of the case and the judge's ruling. If one can find a relevant annotation in ALR, this may be a quick way of grasping the legal principles. Annotations in ALR are not commonly cited, except as authority for a statement of a legal rule in the majority of jurisdictions. Do not look for advocacy of a change in law in ALR, because ALR only reports what the law is. 2. American Jurisprudence, abbreviated "Am.Jur.", is a legal encyclopedia that is relatively easy to read. It's a good starting point for someone unfamiliar with a particular area of law. Am.Jur. is not commonly cited in either law review articles or court opinions. 3. Restatements of the Law, is an authoritative source, which summarizes the result of many reported court cases in the USA. The Restatements are written by a large committee of legal scholars, eminent litigators, and judges. The Restatements function as a statutory codification of the common law, i.e., law made by judges' decisions. In contrast to ALR and Am.Jur., the Restatements are commonly cited in scholarly articles and opinions of courts. 4. Treatises written by law professors and other respected authorities. Examples include: William L. Prosser, TORTS, (4th ed. 1971). Arthur Linton Corbin, CONTRACTS, § 1374 (1962). 5. Articles in law reviews. Most law reviews are published by a law school. A few law reviews are published by professional societies, such as the American Bar Association. Articles often advocate change(s) in law, which need to be distinguished from the current law. 6. Since the year 1941, West publishes U.S. CODE CONGRESSIONAL AND ADMINISTRATIVE NEWS, (abbreviated "U.S.C.C.A.N."), which includes the legislative history of statutes passed by the U.S. Congress. Such material is useful in understanding why a statute was passed, and possibly useful in interpreting words or phrases in the statute.
2. Citation of Court Opinions in the USA
The general form consists of a series of information in the following format for example: Roe v. Wade, 410 U.S. 113, 118 (1973). U.S. v. Carroll Towing Co., 159 F.2d 169 (2dCir. 1947). Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928). Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944). name of the parties The full name of the case at the trial court is always in the format Plaintiff v. Defendant in civil cases and Government v. Defendant in criminal cases. Some appellate courts (e.g., the U.S. Supreme Court) give the name as Appellant v. Appellee, which may be the reverse of the order of names at the trial court. Note that the names of the parties are always italicized when referring to the opinion of the court
in their case. See my further remarks below. In criminal cases where the government is formally listed as, for example, "People of California", omit "People of", or "State of", and use only the name of the state (e.g., California). Omit first and middle names of people. Omit the name of the second and subsequent plaintiffs and defendants, omit "et. al.", and omit alternative names for parties (e.g., "aka", "dba" "also known as" and "doing business as"). volume number When the volume number would be greater than 999, a second series is begun, and "2d" added to the name of the reporter. Similarly, when the volume number in the second series would be greater than 999, a third series is begun, and "3d" added to the name of the reporter. name of reporter Note that the name of the reporter is in regular font, neither underlined nor italicized, even though it is the title of a book. This is a departure from usual scholarly bibliographic format. The name of the reporter is always abbreviated when citing a case. The proper abbreviations follow: U.S. Reports, abbreviated "U.S." West's Supreme Court Reporter, abbreviated "S.Ct." Federal Reporter, abbreviated "F." Federal Supplement, abbreviated "F.Supp." Federal Rules Decisions, abbreviated "F.R.D." Atlantic, abbreviated "A." North Eastern, abbreviated "N.E." North Western, abbreviated "N.W." Pacific, abbreviated "P." South Eastern, abbreviated "S.E." Southern, abbreviated "S." South Western, abbreviated "S.W." West's California Reporter, abbreviated "Cal.Rptr." West's New York State Reporter, abbreviated "N.Y.S." page number of first page of the opinion [optional] comma followed by the specific page number where a quotation or particular holding is found. location and level of court This information may be omitted for citations to the U.S. Supreme Court, since it is obvious from the name of the reporter (e.g., U.S. or S.Ct. or L.Ed.). For opinions of a U.S. Court of Appeals, include the circuit number (e.g., "2dCir." or "9thCir.").
For opinions of federal trial courts, include the district. Some states have only one district (e.g., "D.Mass.") while other states may have two or three districts (e.g., "S.D.N.Y." for Southern District of New York State). For opinions of state supreme courts, use an abbreviation for the name of the state (e.g., "Cal." for California and "N.Y." for New York). For opinions of intermediate state appellate courts (i.e., courts between the trial court and state supreme court) use the abbreviation for the state followed by "App." (e.g., "Cal.App." for California). (This rule is a little too terse and oversimplified: the precise form is given in Table 1 of the Bluebook.) year opinion was issued or published Note that there is no comma between the name of the court and the year of the opinion. The citation to a single case always ends with a period. When one mentions a rule of law and cites to more than one case in which the rule is stated, the individual cases are separated by a semicolon, with a period after the last case in the citation. As stated in the Introduction to this handout, the proper format according to the Bluebook changes with time. One older form placed the identification of the court and the year of the opinion immediately after the name of the parties, for example: U.S. v. Carroll Towing Co., (2dCir. 1947) 159 F.2d 169. I have put a line through this example, so students will not follow this obsolete example.
short form of citation
After the full citation has been given at least once in the preceding five citations, or after the case has been discussed by name in the text, the case may be referred to by the name of one party. In picking that one name, never pick the name of a government (e.g., U.S., California, ...), never pick the name of a government official (e.g., Janet Reno, being sued in her official capacity as Attorney General), and avoid choosing a frequent litigant (e.g., NAACP). My personal preference in civil cases is to pick the name of the plaintiff at the trial court level, who may be either the appellant or appellee on appeal, unless the plaintiff has a common name like "Smith" or "Jones" or unless the plaintiff is anonymous (e.g., "Doe"). In criminal cases, one always uses the name of the defendant as the short name of the case. The short form of the citation has the following format: Palsgraf, 162 N.E. at 100. In this example, one cites a quotation or holding or fact that is located at page 100, without mentioning the first page number of the opinion.
citing an opinion that was later appealed
One must cite not only the opinion from which the quotation or holding was taken, but also cite the results (e.g., affirmed or reversed) of each appellate court that later considered the same case. This subsequent history of the case is important, because it strengthens the significance of the holding if affirmed, or vitiates the significance of the holding if reversed. It is a serious error to cite the opinion of a lower court that was later reversed by an appellate court, without explicitly mentioning the reversal, because the lower court's holding is no longer good law.
There are three common indicators of subsequent history: 1. aff'd for affirmed 2. rev'd for reversed 3. cert. den. for cases appealed to the U.S. Supreme Court, but which that Court declined to hear. This declining to hear may be an indication that the U.S. Supreme Court not only agreed with the lower court's opinion, but also saw no interesting legal issue worthy of discussion. There are several less common indicators of subsequent history: 4. aff'd without opinion when no published opinion is issued with the appellate court's decision 5. overruled by when the rule is changed in a subsequent case with different parties 6. rev'd on other grounds when the decision in that particular case was reversed, but without changing the particular rule of law that is cited. (Many cases involve more than one issue, so the decision of a lower court can be affirmed on one issue and reversed on another issue.) 7. on remand when a trial court again considers the case after the ruling of appellate court(s). This is generally the final disposition of the case. The full list of explanatory phrases is in Table 9 of the Bluebook. Note that if one cites the opinion of the highest court to hear a case, then one does not also need to cite the lower courts that heard the same case. One must cite only subsequent history, not previous history. For example, one may cite a U.S. Supreme Court opinion, or a state supreme court opinion that was not appealed to the U.S. Supreme Court, without mentioning any of the previous history. My general advice is to ignore the prior opinions, unless the case is really important: either it makes a new rule of law or it contains a holding that is unfavorable to your position. My experience is that reading the prior opinions of a case often provides facts that were omitted from later opinions, and those omitted facts sometimes change my view of the final decision. If I am only citing a fact that was mentioned in the opinion of a lower court (but not repeated in the opinion of a subsequent court hearing the same case), I generally do not give the subsequent history in that one citation, provided that a citation including subsequent history is located nearby. My practice is a departure from the accepted rule, but I think it makes sense.
citing a dissenting opinion
If one quotes from a dissenting opinion, one must indicate in the citation that the source is only a dissenting opinion, which is not law. One puts the name of the judge or justice who wrote the dissenting opinion plus the word "dissenting" in parenthesis at the end of the citation. For example: Connick v. Myers, 461 U.S. 138, 156 (1983)(Brennan, J., dissenting). Generally, one avoids quoting from dissenting opinions, unless one is arguing for a change in the law.
citing an unreported opinion
Unreported opinions are not law, but may be persuasive authority. The format is the same as for a reported case, except the volume number and name of the reporter is replaced with a citation to the electronic database. For example:
1991 WL 55402, at *3 cites a case available in WESTLAW but not in published reporters. This particular example was the 55402th item added to the WESTLAW computer database in 1991, and the citation is to page *3. If one is citing the whole case, then one would omit , at *3 because every case in an electronic database begins at page *1, there is no need to mention the first page number. In January 2001, West began publishing the Federal Appendix, which includes the opinions that were not selected by the U.S. Courts of Appeals for publication in the Federal reporter. Citations to this source are in the same format as citations to regular reported cases, the name of the volume is always abbreviated as "Fed.Appx." One can cite any credible source in an essay, but local rules of courts may prohibit citing to unpublished or unreported cases in a Brief filed in that court.
string cites
Sometimes one will cite more than one item to support a proposition, in what is called a "string cite". There is a rigid style for the order of the citations: a. Constitutions a. U.S. Constitution b. State Constitutions, arranged alphabetically by state c. constitutions of foreign nations d. charters of the United Nations and other international organizations b. Statutes a. U.S. federal statutes b. federal rules of evidence or procedure c. state statutes d. state rules of evidence or procedure c. Case Law a. U.S. Supreme Court b. U.S. Court of Appeals, and within this category: by order of the Circuit — First Circuit cases appear first, Eleventh Circuit cases appear last. c. U.S. District Court, and within this category: by alphabetical order of the states. d. State court cases, arranged by alphabetical order of the state. Within each state, that state's supreme court decisions appear first, decisions of intermediate appellate courts next, and decisions of trial courts appear last. d. Secondary materials a. Restatements of the Law b. Treatises (e.g., Prosser & Keeton, TORTS (5th ed. 1984); Corbin, CONTRACTS) c. Articles in Law Reviews Within each of the above categories of case law, the most recent case appears first, the oldest case appears last. The organizing principle is that the strongest authority appears first. For example, the U.S. Supreme Court appears before other courts, because it is the highest court in the USA. Similarly, recent cases are more authoritative than a musty old case that may have been ignored for tens of years, but never overturned.
The above order for string cites is from the Bluebook, but I do not like this rule and I do not follow this rule in my essays that are posted at my websites. Personally, I favor a strict chronological order, with the oldest case first, to clearly show the historical evolution of the law. Old cases are not necessarily "musty" — citing an old case shows that the law is well established, and not some recent quirk. A string cite as a single-spaced, fine-print footnote is useful for citing authorities to support an assertion that is commonly known amongst attorneys and judges. Because such string cites are difficult-to-read, I prefer to display a string cite as an indented list in the text (not as a footnote), with a blank line clearly separating each case. For example: There is a long line of cases on Heckler's Veto: 1. Terminiello v. City of Chicago, 337 U.S. 1 (1949) (speaker was arrested to prevent disturbance by crowd of approximately 1000 protesters). 2. Edwards v. Louisiana, 372 U.S. 229 (1963). 3. Cox v. Louisiana, 379 U.S. 536 (1965). 4. Brown v. Louisiana, 383 U.S. 131 (1966) (The first use by the U.S. Supreme Court of the phrase "heckler's veto" is in footnote 1 at page 133.). 5. Tinker v. Des Moines, 258 F.Supp. 971 (S.D.Iowa 1966), aff'd, 383 F.2d 988 (8thCir. 1967), rev'd, 393 U.S. 503, 508-509 (1969) (Fear of a disturbance in school was not adequate reason for school principals to forbid pupils to wear black armbands, as a symbol of their opposition to the war in Vietnam.). 6. Gooding v. Wilson, 405 U.S. 518 (1972). 7. Healy v. James, 408 U.S. 169 (1972). 8. Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992). Putting only one case per element in the indented list, and putting a blank line between elements is especially helpful when one also cites earlier opinions in the same case, as I did above in the abovecited Tinker case.
3. Citation of Statutes and Regulations
federal
The general form for federal statutes and regulations consists of a series of information in the following format, for example: 17 U.S.C. § 102. title number
name of statute or regulation Note that the name of the statute or regulation is in regular font, neither underlined nor italicized, even though it is the title of a book. This is a departure from usual scholarly bibliographic format. The name is always abbreviated as follows: United States Code, abbreviated "U.S.C." Code of Federal Regulations, abbreviated "C.F.R." § section number There is one blank space between the section symbol and the number. [optional] subsection It is conventional to denote subsections with lower-case letters of the alphabet. The second sublevel of organization uses numbers. The third sublevel uses upper-case letters. The fourth sublevel uses lower-case roman numerals. Enclose each level of organization in separate parentheses. For example: 17 U.S.C. § 102(a)(1). period at the end of the citation. Citations to U.S. Statutes at Large are in the following format: 48 Stats. 112, 113 (1933). Where 48 is the volume number, 112 is the first page number of the statute, 113 is the page number of the quoted material, and 1933 is the year that the statute was enacted. The U.S. Statutes at Large are cited when the history of a statute is discussed, but citations to the United State Code (abbreviated "U.S.C.") are more common in court cases.
state statutes
The format for citation to state statutes varies among the states, here are two examples: Illinois: Ill.Rev.Stat. ch. 3, para. 4. Massachusetts: Mass.Gen.L. ch. 3, § 4. The states in these two examples use the word "chapter" where the federal government uses the word "title". The statutes of California, Maryland, New York State, and Texas use words (e.g., "Education", "Penal") instead of title numbers, or chapter numbers, in their statutes. For example: Cal. Penal Code § ##. N.Y. Educ. Law § ##. where ## is an integer number.
4. Bluebook format for citing secondary sources
citation of books
The Bluebook has a really strange format for citing books that is a radical departure from scholarly practice in other fields. In a multi-volume book, the volume number is placed to the left of the author's name! This practice is not only confusing to nonlawyers, but also ugly. There is no good reason for
books to be cited differently by lawyers than by any other learned profession. The title of a book is set in small capitals. (Some wordprocessors have a command to automatically convert a block of normal text to small capitals.) Examples of citing books or chapters in books: • Michael P. Sullivan, Annotation, Products Liability: Electricity, 60 A.L.R.4th 732 (1988). • Leonard I. Reiser, Privacy, 62A AM.JUR.2d 623 (1990). • RESTATEMENT (SECOND) OF CONTRACTS § 206 (1981). • RESTATEMENT (SECOND) OF TORTS § 652A (1977). Some attorneys omit the "of" in citing the Restatement, but the Bluebook includes the "of", and the inclusion makes the title easier to read. • William L. Prosser, TORTS, (4th ed. 1971). • 6A Arthur Linton Corbin, CONTRACTS, § 1374 (1962). A citation to a specific item in a book can be by section number or by page number.
articles in periodicals
The Bluebook uses a format for citing articles in periodicals (e.g., law reviews and other scholarly journals) that is different from conventional scholarly bibliographic format. For example: • Warren & Brandeis, The Right to Privacy, 4 HARV.L.REV. 193, 196 (1890). • William L. Prosser, Privacy, 48 CAL.L.REV. 383 (1960). Note that: 1. 2. 3. 4. the author's name is in conventional order, not: last name, first name. the title of the article is in italics, not inside quotation marks the name of the periodical is in small capitals the volume number, name of the journal, page number(s), and year of publication are all given in the same format used for court cases.
After experimenting with different formats, I prefer the Bluebook format for volume and page numbers, because it is more compact than the traditional scholarly format (e.g., Vol. 4, p. 193). However, I prefer to put the title of an article in quotation marks, instead of italic typeface, since italics are traditionally reserved for titles of books. The really important thing in a citation is that a citation must accurately include all of the information that a reader needs to find and verify the source. The format of the citation is of secondary importance, although professional editors often care more about the format than the accuracy of the information, or the appropriateness of the author's choice of the cited source. articles/notes Papers published in law reviews are divided into two classes: 1. Articles are written by professors or practicing attorneys
2. Notes are written by law students. The distinction is one of rank. As one arrogant law professor once confided to me, "Who cares what a 25 year old kid thinks?" The traditional Bluebook form for citing a Note is to use the word Note in place of the author's name. Astounding! Just because of rank, the student is forced to be anonymous, even if he/she wrote an outstanding scholarly work. The difference between an author of a Note and an author of an Article may be as slight as both passing the bar examination and one or two years of experience as an attorney. Surely, this is not a significant difference that affects one's ability to synthesize legal principles from many cases, or to suggest better law. Indeed, court opinions that cite law reviews often also cite Notes, which is proof that some Notes are taken seriously. In writing essays for my web sites during 1996-99, I used the law student's name in place of the word Note, in defiance of the traditional Bluebook rule, and to give the author of a good Note proper recognition for his/her work. The sixteenth edition of the Bluebook abandoned the traditional rule, in favor of writing the name of the student-author of the Note, followed by the word "Note" as, for example: J. Peter Shapiro & James F. Tune, Note, Implied Contract Rights to Job Security, 26 Stanford L.Rev. 335 (1974). This citation form was used by Judge Schiller at 737 A.2d 1250, 1256, n.12 (Pa.Super. 1999). Particularly when writing a memorandum of law, or a Brief to submit to a court, one should include the word "Note", to avoid misrepresenting that a Note is an Article.
Alternatives to the Bluebook
As mentioned in the introduction of this handout, the generally accepted style manual for legal citations in the USA is the Bluebook: A Uniform System of Citation, which is published by the editors of four prestigious law reviews at Columbia University, Harvard, Univ. of Pennsylvania, and Yale Law Schools. The Bluebook has a website. The Bluebook is really only a style manual for authors of law reviews. There is a brief section in the Bluebook titled "Practitioners' Notes" that purports to give rules for style in both briefs filed in a court and legal memoranda. However, the Bluebook — which is written by law students who edit their school's law reviews — has no authority to establish rules for documents submitted to courts. Further, there are many objections to the rules in the Bluebook. I mentioned above my distaste for their rule on citing a multi-volume book, with the volume number to the left of the author's name, instead of a format consistent with citation style for court cases and law reviews, in which the volume number goes to the left of the name of the book. There are some alternatives to the Bluebook, but these alternatives are not commonly used in the legal profession: 1. The American Bar Association (ABA) has created the Uniform Citation Standards. 2. The Association of Legal Writing Directors (ALWD) has published a citation manual for use in teaching students in the first semester of law school. The ALWD publication simplifies some of the Bluebook rules and removes some of the inconsistencies among the Bluebook rules. And, unlike the Bluebook, the ALWD includes the citation rules promulgated by each state in the USA.
3. The University of Chicago Manual of Legal Citation, printed in 1989 by Lawyers' Cooperative Publishing Company. The Chicago Manual is often called "The Maroon Book". 4. Various state supreme courts have published a style manual, some of which are available on the Internet. For example: • Massachusetts • New Jersey • New York The common Bluebook style for citing court cases mentions page numbers in a printed copy of an opinion, contained in a bound volume on a library shelf. These bound volumes are published by West (e.g., the seven regional reporters, Federal Reporter, and Federal Supplement), the U.S. Reports, or an official reporter that is published by a state. WESTLAW, which is West's collection of online databases, and the LEXIS online databases, both contain page numbers in the common printed reporters, so these online databases are substitutes for printed copies in bound volumes. In contrast, the ABA style for citing court cases cites to a paragraph number in each opinion, instead of page numbers in the bound volume of a reporter. The ABA style is thus independent of printed reporters, most of which are proprietary products of West Publishing Company. The ABA style — which the Bluebook calls the "public domain format" — will become more important as attorneys find cases from a variety of different sources on the Internet. I expect to see courts post all of their opinions at their own website, instead of relying on West or Lexis to publish the opinions, but courts have been glacially slow to embrace the Internet. Personally, I like references to generic sources, instead of references to a proprietary product. However, it is an established fact that West Publishing Company is the dominant source of reported court opinions in the USA. In September 2000, the seven regional reporters, F.Supp., and the Federal Reporter — all published by West — occupied 16631 volumes on library shelves. It will be a long time before any other source scans all of those old volumes (or purchases a license to West's database); deletes West's proprietary synopsis, deletes references to West's key numbers, and deletes West's headnotes from each opinion; then inserts paragraph numbers, and makes those old opinions available online. Therefore, I expect attorneys to continue to cite to the page numbers in West's Reporters for a long time.
5. Legal Writing Style
Legal writing is a type of scholarly writing by an educated person, so the comments in my handout, Technical Writing, and also in my other essay on writing are also applicable to legal writing. However, there are a few matters of style that are unique to legal writing; some of these are discussed below. I recommend the following books: • The Bluebook: A Uniform System of Citation. (I do not like many of the rules in this book, but it is the conventional authority on style of citation in legal writing.) The publisher of the Bluebook has a website. • BLACK'S LAW DICTIONARY, published by West, is the standard legal dictionary in the USA.
• Bryan A. Garner, THE ELEMENTS OF LEGAL STYLE, published by Oxford University Press in 1991, is readable and his advice is good. • Bryan A. Garner, A DICTIONARY OF MODERN LEGAL USAGE, also published by Oxford University Press, is a useful reference book.
plain English is better
There are two opposing points of view about legal writing style. The traditionalists advocate bloated or archaic legal prose, such as the following examples: Wherefore, the party of the first part and the party of the second part do covenant and agree .... Further, affiant sayeth not. Such writing deserves to be set in a fancy black letter typeface, then ridiculed. The modernists, led by Bryan Garner, whose books I mentioned above, advocate writing in plain English. I am firmly in the modernists camp. Traditionalist attorneys have sometimes commented that my writing "doesn't look like it was written by a lawyer". They are criticizing me, I take it as a compliment. Having advocated using plain English, I must also say that it is entirely appropriate to use conventional legal terms-of-art (e.g., due process, res judicata, amicus curiae, spoliation of evidence, etc.), even though someone without a legal education will probably not understand these terms. I do object to using an uncommon word where there is a common synonym with equivalent meaning (e.g., I object to eleemosynary when one could use charitable or nonprofit.). But, if an uncommon word has a nuance that makes it more appropriate, then use the uncommon word without hesitation. Gardner, in The Elements of Legal Style at page 38, says "Arguments against big words have a way of descending into anti-intellectualism, so we ought to recognize that a liberal use of the English vocabulary ought not to be stifled."
specific comments on legal style
capitalization The names or designation of the parties in a court case always begin with an upper-case first letter. This is obvious when the parties are called by their real name (e.g., Myers), but it is also true when the parties are called by their role in the case (e.g., Plaintiff, Defendant, Appellant, etc.). On the other hand, if one is speaking of a plaintiff or defendant in general, then the word has a lower-case first letter. Consider the following examples of the distinction between Plaintiffs and plaintiffs: This is the only cloud seeding case in the USA in which plaintiffs won. The above sentence means that different plaintiffs (e.g., Slutsky, Duncan, Lunsford, Saba, ..., etc.) each filed one case, but the plaintiffs lost in all but one case. This is the only cloud seeding case in the USA in which Plaintiffs won. The above sentence means that one group of Plaintiffs filed several court cases, and those Plaintiffs lost all but one case. The name of a party in italics (e.g., Myers) is a short way of referring to the written opinion of the court that heard the case in which Myers (N.B. no italics) was a party (i.e., the Appellee in Connick v. Myers,
a famous U.S. Supreme Court case on freedom of speech for government employees). Note the distinction between the italics and plain typeface: italics designates the opinion of a court, plain typeface designates the person. The word Court has an upper-case C whenever it refers to either: 1. the U.S. Supreme Court, 2. the full name of the court (e.g., "the U.S. Court of Appeals for the First Circuit"), or 3. the specific court that receives the document (i.e., in a document written for submission to a court). innocent ? A criminal court never finds a defendant to be "innocent". The result in a criminal court can only be "guilty" or "not guilty". Journalists often write that a defendant pled "innocent" or a jury found a defendant "innocent", but the correct phrase is "not guilty". There are only three possible pleas: 1. guilty, which means that the state does not need to prove its case, and the court only needs to decide the punishment of the defendant. 2. not guilty. 3. nolo contendere, in which the defendant does not admit his/her guilt, but also does not demand that the state prove its case. The court then decides the punishment of the defendant. The nolo plea is allowed only with the approval of the judge. "Innocent" is not a possible plea in a court in the USA. conclusory phrases Be careful of using words such as "unfair, unjust, malicious". Those words express a conclusion, not a fact. The conventional names of many torts have such words included: unfair competition, wrongful death, malicious prosecution, etc. It is not adequate to merely assert unfairness or malice — one must provide evidence that leads a reasonable person to that conclusion. signal phrases The Bluebook says that "signal" phrases in footnotes or citations in text ("See, see also, accord, but see, compare, contra, see generally, cf., e.g.") are italicized. This Bluebook rule conflicts with generally accepted scholarly practice in other disciplines (e.g. The Chicago Manual of Style, the Modern Language Association Style Manual), and I think the result looks strange, so I refuse to follow this Bluebook rule. rules of style Lawyers in the USA sometimes appear to follow different rules of style from other users of English: 1. Most lawyers do not know the difference between that and which, to introduce clauses. See my handout on Technical Writing. 2. Lawyers generally consider or to be exclusive, while scientists and logicians consider or to be inclusive. See my handout on Technical Writing. 3. Lawyers commonly omit the comma before the last item in a list of items. As Bryan Garner says
in his book, The Elements of Legal Style, pages 17-18, the omission of a comma before and can cause ambiguity. 4. Judges use the subjunctive mood of verbs when appropriate more frequently than other learned professionals in the USA. I like the subjunctive mood, but it is rarely used in the USA, even among university professors and other educated people.
out-of-place technical jargon
From time to time, one sees allusions in court opinions to technical words or phrases from mechanics, electricity, magnetism, nuclear physics, etc. Such allusions are objectionable because they are jarring to the reader (i.e., they stick out like a sore thumb) and — to a scientifically literate reader — they show that the writer does not understand scientific terms. The latter point raises the question, if the writer uses scientific terms that the writer does not understand, then what else in the document has a weak justification? In the interest of keeping this essay short, I have posted examples of Technical Babble by judges in the USA in a separate document.
This document is at first posted 30 July 2000, last modified 26 May 2009. Go to my collection of links to legal resources on the Internet. Return to my personal homepage.
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U.S. Supreme Court
Rundle v. Delaware & Raritan Canal Company, 55 U.S. 14 How. 80 80 (1852)
Rundle v. Delaware & Raritan Canal Company 55 U.S. (14 How.) 80 ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY Syllabus By the law of Pennsylvania, the River Delaware is a public navigable river, held by its joint sovereigns in trust for the public. Riparian owners in that state have no title to the river or any right to divert its waters unless by license from the states.
Such license is revocable, and in subjection to the superior right of the state to divert the water for public improvements, either by the state directly or by a corporation created for that purpose. The proviso to the provincial acts of Pennsylvania and New Jersey, of 1771 does not operate as a grant of the usufruct of the waters of the river to Adam Hoops and his assigns, but only as a license, or toleration of his dam. As, by the laws of his own state, the plaintiff could have no remedy against a corporation authorized to take the whole waters of the river for the purpose of canals, or improving the navigation, so neither can he sustain a suit against a corporation created by New Jersey for the same purpose, who have taken part of the waters. The plaintiffs, being but tenants at sufferance in the usufruct of the water to the two states who own the river as tenants in common, are not in a condition to question the relative rights of either to use its waters without consent of the other. This case is not intended to decide whether a first licensee for private emolument can support an action against a later licensee of either sovereign or both, who, for private purposes, diverts the water to the injury of the first. The facts in the case are set forth in the opinion of the Court. Page 55 U. S. 87 MR. JUSTICE GRIER delivered the opinion of the Court. The plaintiffs in error, who were plaintiffs below, are owners Page 55 U. S. 88 of certain mills in Pennsylvania opposite to the City of Trenton, in New Jersey. These mills are supplied with water from the Delaware River by means of a dam extending from the Pennsylvania shore to an island lying near and parallel to it and extending along the rapids to the head of tidewater. The plaintiffs, in their declaration, show title to the property under one Adam Hoops, who had erected his mill and built a dam in the river previous to the year 1771. In that year, the Provinces of Pennsylvania and New Jersey, respectively, passed acts declaring the River Delaware a common highway for purposes of navigation up and down the same, and mutually appointing commissioners to improve the navigation thereof, with full power and authority to remove any obstructions whatsoever, natural or artificial, and subjecting to fine and imprisonment any person who should set up, repair, or maintain any dam or obstruction in the same, provided "that nothing herein contained shall give any power or authority to the commissioners herein appointed, or any of them, to remove, throw down, lower, impair, or in any manner to alter a mill dam erected by Adam Hoops, Esq., in the said River Delaware between his plantation and an island in the said river nearly opposite to Trenton, or any mill dam erected by any other person or persons in the said river, before the passing of this act, nor to obstruct, or in any manner to hinder the said Adam Hoops, or such other person or persons, his or their heirs and assigns from maintaining, raising, or repairing the said dams respectively or from taking water out of the said river for the use of the said mills and waterworks erected as aforesaid, and none other." The declaration avers that by these acts of the provincial legislatures, the said Hoops, his heirs and assigns, became entitled to the free and uninterrupted enjoyment and privilege of the River Delaware for the use of the said mills &c., without diminution or alteration by or from the act of said Provinces, now States of Pennsylvania and New Jersey, or any person or persons claiming under them or either of them. Nevertheless, that the defendants erected a dam in said river above plaintiffs' mills and dug a
canal and diverted the water, to the great injury &c. The defendants are a corporation chartered by New Jersey for the purpose of "constructing a canal from the waters of the Delaware to those of the Raritan, and of improving the navigation of said rivers." They admit the construction of the canal and the diversion of the waters of the river for that purpose, but demur to the declaration, and set forth as causes of demurrer: "That the Act of the Legislature of the then Province of Page 55 U. S. 89 Pennsylvania passed March ninth in the year of our Lord one thousand seven hundred and seventy one, and the Act of the then Province of New Jersey passed December twenty-first in the year of our Lord one thousand seven hundred and seventy-one, as set forth in said amended fifth count, do not vest in the said Adam Hoops or in his heirs or assigns the right and privilege to the use of the water of the River Delaware without diminution or alteration, by or from the act of the then Province, now State, of Pennsylvania, or of the then Province, now State, of New Jersey or of any person or persons claiming under either of them or of any person or persons whomsoever, as averred in the said amended fifth count of the said declaration. And also for that it does not appear, from the said amended fifth count that the same George Rundle and William Griffiths are entitled to the right and privilege to the use of the water of the River Delaware in manner and from as they have averred in the said amended fifth count of their declaration." "And also that as it appears from the said amended fifth count that the said River Delaware is a common highway and public navigable river, over which the States of Pennsylvania and New Jersey have concurrent jurisdiction, and a boundary of said states, these defendants insist that the legislative acts of the then Province of Pennsylvania and New Jersey, passed in the year of our Lord seventeen hundred and seventy one, as set forth in the said amended fifth count, were intended to declare the said River Delaware a common highway, and for improving the navigation thereof, and that the provision therein contained, as to the mill dam erected by Adam Hoops in the said River Delaware, did not and does not amount to a grant or conveyance of water power to the said Adam Hoops, his heirs or assigns, or to a surrender of the public right in the waters of the said river, but to a permission only to obstruct the waters of the said river by the said dam without being subjected to the penalties of nuisance; that the right of the said Adam Hoops was, and that of his assigns is, subordinate to the public right at the pleasure of the Legislature of Pennsylvania and New Jersey, or either of them." On this demurrer the court below gave judgment for the defendants, which is now alleged as error. It is evident that the extent of the plaintiff's rights as a riparian owner, and the question whether this proviso operates as the grant of a usufruct of the waters of the river, or only as a license of toleration of a nuisance, liable to revocation or subordinate to the paramount public right, must depend on the laws and customs of Pennsylvania as expounded by her own courts. It will be proper, therefore, to give a brief sketch of Page 55 U. S. 90 the public history of the river and the legislative action connected with it, as also of the principles of law affecting aquatic rights, as developed and established by the courts of that state. The River Delaware is the well known boundary between the States of Pennsylvania and New Jersey. Below tidewater, the river, its soil and islands, formerly belonged to the Crown; above tidewater, it was vested in the proprietaries of the coterminous provinces -- each holding ad medium filum aquae. Since the Revolution, the states have succeeded to the public rights both of the Crown and the proprietaries. Immediately after the Revolution, these states entered into the compact of 1783, declaring the Delaware
a common highway for the use of both and ascertaining their respective jurisdiction over the same. For thirty years after this compact, they appear to have enjoyed their common property without dispute or collision. When the legislature of either state passed an act affecting it, they requested and obtained the concurrence and consent of the other. Their first dispute was caused by an Act of New Jersey passed February 4, 1815, authorizing Coxe and others to erect a wing dam and divert the water for the purpose of mills and other machinery. The consent of the State of Pennsylvania was not requested; it therefore called forth a protest from the legislature of that state. This was followed by further remonstrance in the following year. A proposition was made to submit the question of their respective rights to the Supreme Court of the United States, which was rejected by New Jersey. After numerous messages and remonstrances between the governors and legislatures, commissioners were mutually appointed to compromise the disputes. But they failed to bring the matter to an amicable conclusion. The dispute was never settled, and the wing dam remained in the river. In 1824, New Jersey passed the first act for the incorporation of the Delaware & Raritan Canal Company, for which the company gave a bonus of $100,000. This act requires the consent of the State of Pennsylvania, and on application's being made to her legislature, she clogged her consent with so many conditions that New Jersey refused to accept her terms, returned the bonus to the company, and so the matter ended for that time. Both parties then appointed commissioners to effect, if possible, some compact or arrangement by which each state should be authorized to divert so much water as would be necessary for these contemplated canals. After protracted negotiations, these commissioners finally, in 1834, agreed upon terms, but the compact proposed by them was never ratified by either party. Page 55 U. S. 91 In the meantime, each state appropriated to itself as much of the waters of the river as suited its purpose. In 1827 and 1828, Pennsylvania diverted the River Lehigh, a confluent of the Delaware, and afterwards, finding that stream insufficient, took additional feeders for her canal, out of the main stream of the Delaware. On the 4th February, 1830, the Legislature of New Jersey passed the act under which the defendants were incorporated and in pursuance of which, they have constructed the dam and feeder, the subject of the present suit. The canals in both states, supplied by the river, are intimately and extensively connected with their trade, revenues, and general property -- while the navigation of the river above tidewater, and the rapids at Trenton, is of comparatively trifling importance, being used only at times of the spring freshets for floating timber down the stream when the artificial diversions do not affect the navigation. The practical benefits resulting to both parties, from their great public improvements appear to have convinced them that further negotiations, complaints, or remonstrances would be useless and unreasonable, and thus, by mutual acquiescence and tacit consent, the necessity of a more formal compact has been superseded. The law of Pennsylvania by which the title and rights of the plaintiffs must be tested differs materially from that of England and most of the other states of the Union. As regards her large fresh water rivers, she has adopted the principles of the civil law. In the case of Carson v. Blazer, the supreme court of that state decided that the large rivers, such as the Susquehanna and Delaware, were never deemed subject to the doctrines of the common law of England applicable to fresh water streams, but that they are to be treated as navigable rivers; that the grants of William Penn, the proprietary, never extended beyond the margin of the river, which belonged to the public, and that the riparian owners have therefore no exclusive rights to the soil or water of such rivers ad filum medium aquae. In Shrunk v. Schuylkill Navigation Company, the same court repeats the same doctrine, and Chief Justice Tilghman, in delivering the opinion of the court, observes:
"Care seems to have been taken from the beginning to preserve the waters of these rivers for public uses both of fishery and navigation, and the wisdom of that policy is now more striking than ever, from the great improvements in navigation, and others in contemplation, to effect which, it is necessary to obstruct the flow of the water in some places and in others to divert its course. It is true that the state would have had a right to do these things for the public benefit even if the rivers had been private property, but then compensation must have been made to the Page 55 U. S. 92 owners, the amount of which might have been so enormous as to have frustrated or at least checked these noble undertakings." In the case of Monongahela Navigation Company v. Coons, the defendant had erected his mill under a license given by an act of the legislature in 1803 to riparian owners to erect dams of a particular structure, "provided they did not impede the navigation," &c.. The Monongahela Navigation Company, in pursuance of a charter granted them by the state, had erected a dam in the Monongahela, which flowed back the water on the plaintiff's mill in the Youghiogany and greatly injured it. And it was adjudged by the court that the Company were not liable for the consequential injury thus inflicted. The court, speaking of the rights of plaintiff consequent on the license granted by the act, of 1803, observed: "That statute gave riparian owners liberty to erect dams of a particular structure on navigable streams without being indictable for a nuisance, and their exercise of it was consequently to be attended with expense and labor. But was this liberty to be perpetual, and forever tie up the power of the state? Or is not the contrary to be inferred from the nature of the license? So far was the legislature from seeming to abate one jot of the state's control that it barely agreed not to prefer an indictment for a nuisance except on the report of viewers to the Quarter Sessions. But the remission of a penalty is not a charter, and the alleged grant was nothing more than a mitigation of the penal law." The case of Susquehanna Canal Company v. Wright confirms the preceding views and decides, "that the state is never presumed to have parted with one of its franchises in the absence of conclusive proof of such an intention." Hence a license, accorded by a public law to a riparian owner, to erect a dam on the Susquehanna River and conduct the water upon his land for his own private purposes is subject to any future provision which the state may make with regard to the navigation of the river. And if the state authorize a company to construct a canal which impairs the rights of such riparian owner, he is not entitled to recover damages from the company. In that case, Wright had erected valuable mills under a license granted to him by the legislature, but the court said: "He was bound to know that the state had power to revoke its license whenever the paramount interests of the public should require it. And in this respect a grant by a public agent of limited powers, and bound not to throw away the interests confided to it, is different from a grant by an individual who is master of the subject. To revoke the latter after an expenditure in the prosecution of it would be a fraud. But he who accepts a Page 55 U. S. 93 license from the legislature knowing that he is dealing with an agent bound by duty not to impair public rights does so at his risk, and a voluntary expenditure on the foot of it gives him no claim to compensation." The principles asserted and established by these cases are perhaps somewhat peculiar, but as they affect rights to real property in the State of Pennsylvania, they must be treated as binding precedents in this Court. It is clear also from the application of these principles to the construction of the proviso under consideration that it cannot be construed as a grant of the waters of a public river for private use or a
fee simple estate in the usufruct of them "without diminution or alteration." It contains no direct words of grant which would operate by way of estoppel upon the grantor. The dam of Adam Hoops was a nuisance when it was made, but as it did little injury to the navigation, the commissioners, who were commanded to prostrate other nuisances, were enjoined to tolerate this. The mills of Hoops had not been erected on the faith of a legislative license, as in the cases we have quoted, and a total revocation of it would not be chargeable with the apparent hardship and injustice which might be imputed to it in those cases. His dam continues to be tolerated, and the license of diverting the water to his mills is still enjoyed, subject to occasional diminution from the exercise of the superior right of the sovereign. His interest in the water may be said to resemble a right of common, which by custom is subservient to the right of the lord of the soil, so that the lord may dig clay pits, or empower others to do so, without leaving sufficient herbage on the common. Bateson v. Green, 5 T.R. 411. Nor can the plaintiff claim by prescription against the public for more than the act confers on him, which is at best impunity for a nuisance. His license, or rather toleration, gives him a good title to keep up his dam and use the waters of the river as against everyone but the sovereign, and those diverting them by public authority, for public uses. It is true that the plaintiff's declaration in this case alleges that the waters diverted by defendants' dam and canal are used for the purpose of mills and for private emolument. But as it is not alleged or pretended that defendants have taken more water than was necessary for the canal or have constructed a canal of greater dimensions than they were authorized and obliged by the charter to make, this secondary use must be considered as merely incidental to the main object of their charter. We do not, therefore, consider the question before us whether the plaintiff might not recover damages against an individual or private corporation diverting the water of this river Page 55 U. S. 94 to their injury for the purpose of private emolument only, with or without license or authority of either of its sovereign owners. The case before us requires us only to decide that by the laws of Pennsylvania, the River Delaware is a public navigable river, held by its joint sovereigns in trust for the public; that riparian owners of land have no title to the river or any right to divert its waters unless by license from the state. That such license is revocable and in subjection to the superior right of the state to divert the water for public improvements. It follows necessarily from these conclusions that whether the State of Pennsylvania claim the whole river, or acknowledge the State of New Jersey as tenant in common and possessing equal rights with herself, and whether either state, without consent of the other has or has not a right to divert the stream, it will not alter or enlarge the plaintiff's rights. Being a mere tenant at sufferance to both as regards the usufruct of the water, he is not in a condition to question the relative rights of his superiors. If Pennsylvania chooses to acquiesce in this partition of the waters for great public improvements or is estopped to complain by her own acts, the plaintiff cannot complain or call upon this Court to decide questions between the two states which neither of them sees fit to raise. By the law of his own state, the plaintiff has no remedy against a corporation authorized to take the whole river for the purpose of canals or improving the navigation, and his tenure and rights are the same as regards both the states. With these views, it will be unnecessary to inquire whether the compact of 1783 between Pennsylvania and New Jersey operated as a revocation of the license or toleration implied from the proviso of the colonial acts of 1771, as that question can arise only in case the plaintiffs' dam be indicted as a public nuisance. Nor is it necessary to pass any opinion on the question of the respective rights of either of these coterminous states to whom this river belongs to divert its waters without the consent of the other.
The question raised is not without its difficulties, but being bound to resolve it by the peculiar laws of Pennsylvania as interpreted by her own courts, we cannot say that the court below has erred in its exposition of them, and therefore Affirm the judgment. MR. JUSTICE McLEAN and MR. JUSTICE DANIEL dissented. MR. JUSTICE CATRON gave a separate opinion; and MR. JUSTICE CURTIS dissented from the judgment of the court, on the merits, but not from its entertaining jurisdiction. Page 55 U. S. 95 The following are the opinions of MR. JUSTICE CATRON and MR. JUSTICE DANIEL. MR. JUSTICE CATRON. My opinion is and long has been that the mayor and aldermen of a city corporation, or the president and directors of a bank, or the president and directors of a railroad company and of other similar corporations, are the true parties that sue and are sued as trustees and representatives of the constantly changing stockholders. These are not known to the public and not suable in practice by service of personal notice on them respectively, such as the laws of the United States require. If the president and directors are citizens of the state where the corporation was created, and the other party to the suit is a citizen of a different state or a subject or citizen of a foreign government, then the courts of the United States can exercise jurisdiction under the Third Article of the Constitution. In this sense I understood Letson's Case, and assented to it when the decision was made, and so it is understood now. If all the real defendants are not within the jurisdiction of the court, because some of the directors reside beyond it, then the Act of February 28, 1843, allows the suit to proceed regardless of this fact, for the reasons stated in Letson's Case. 43 U. S. 2 How. 597. If the United States courts could be ousted of jurisdiction and citizens of other states and subjects of foreign countries be forced into the state courts without the power of election, they would often be deprived, in great cases, of all benefit contemplated by the Constitution, and in many cases be compelled to submit their rights to judges and juries who are inhabitants of the cities where the suit must be tried, and to contend with powerful corporations in local courts where the chances of impartial justice would be greatly against them and where no prudent man would engage with such an antagonist if he could help it. State laws, by combining large masses of men under a corporate name, cannot repeal the Constitution; all corporations must have trustees and representatives, who are usually citizens of the state where the corporation is created, and these citizens can be sued and the corporate property charged by the suit; nor can the courts allow the constitutional security to be evaded by unnecessary refinements without inflicting a deep injury on the institutions of the country. MR. JUSTICE DANIEL. In the opinion of the Court just announced in this cause I am unable to concur. Were the relative rights and interests of the parties to this Page 55 U. S. 96 controversy believed to be regularly before this Court, I should have coincided in the conclusions of the majority for the reason that all that is disclosed by the record either of the traditions or the legislation of the States of Pennsylvania and New Jersey shows an equal right or claim on the part of either of those states to the River Delaware and to the uses to which the waters of that river might be applied. From such an equality in each of those states it would seem regularly to follow that no use or enjoyment of the waters of that river could be invested in the grantees of one of them to the exclusion of the like use
and enjoyment by the grantees of the other. The permission, therefore, from Pennsylvania to Adam Hoops or his assignees to apply the waters of the Delaware in the working of his mill, whatever estate or interest it might invest in such grantee as against Pennsylvania, could never deprive the State of New Jersey of her equal privilege of applying the waters of the same river, either directly, in her corporate capacity, or through her grantee, the Delaware & Raritan Canal Company. My disagreement with my brethren in this case has its foundation in a reason wholly disconnected with the merits of the parties. It is deducible from my conviction of the absence of authority, either here or in the circuit court, to adjudicate this cause, and that it should therefore have been remanded with directions for its dismission for want of jurisdiction. The record discloses the fact that the party defendant in the circuit court and the appellee before this Court is a corporation, styled in the declaration, "a corporation created by the State of New Jersey." It is important that the style and character of this party litigant, as well as the source and manner of its existence, be borne in mind, as both are deemed material in considering the question of the jurisdiction of this Court and of the circuit court. It is important, too, to be remembered that the question here raised stands wholly unaffected by any legislation, competent or incompetent, which may have been attempted in the organization of the courts of the United States, but depends exclusively upon the construction of the 2d section of the 3d article of the Constitution, which defines the judicial power of the United States -- first with respect to the subjects embraced within that power, and secondly with respect to those whose character may give them access, as parties, to the courts of the United States. In the second branch of this definition, we find the following enumeration as descriptive of those whose position as parties will authorize their pleading or being impleaded in those courts, and this position is limited to "controversies to which the United States are a party; Page 55 U. S. 97 controversies between two or more states -- between citizens of different states -- between citizens of the same state, claiming lands under grants of different states -- and between the citizens of a state and foreign citizens or subjects." Now it has not been and will not be pretended that this corporation can in any sense be identified with the United States or is endowed with the privileges of the latter, or if it could be, it would clearly be exempted from all liability to be sued in the federal courts. Nor is it pretended that this corporation is a state of this Union, nor, being created by, and situated within the State of New Jersey, can it be held to be the citizen or subject of a foreign state. It must be, then, under that part of the enumeration in the article quoted which gives to the courts of the United States jurisdiction in controversies between citizens of different states that either the circuit court or this Court can take cognizance of the corporation as a party, and this is, in truth, the sole foundation on which that cognizance has been assumed or is attempted to be maintained. The proposition, then, on which the authority of the circuit court and of this tribunal is based is this: the Delaware & Raritan Canal Company is either a citizen of the United States or it is a citizen of the State of New Jersey. This proposition, startling as its terms may appear either to the legal or political apprehension, is undeniably the basis of the jurisdiction asserted in this case and in all others of a similar character, and must be established or that jurisdiction wholly fails. Let this proposition be examined a little more closely. The term "citizen" will be found rarely occurring in the writers upon English law, those writers almost universally adopting, as descriptive of those possessing rights or sustaining obligations, political or social, the term "subject" as more suited to their peculiar local institutions. But in the writers of other nations and under systems of polity deemed less liberal than that of England, we find the term "citizen" familiarly reviving, and the character and the rights and duties that term implies particularly defined.
Thus, Vattel, in his 4th book, has a chapter, cap. 6th, the title of which is: "The concern a nation may have in the actions of her citizens." A few words from the text of that chapter will show the apprehension of this author in relation to this term. "Private persons," says he, "who are members of one nation may offend and ill treat the citizens of another; it remains for us to examine what share a state may have in the actions of her citizens and what are the rights and obligations of sovereigns in that respect." And again: "Whoever uses a citizen ill indirectly offends the state, which is bound to protect this citizen." The meaning of the term Page 55 U. S. 98 "citizen" or "subject," in the apprehension of English jurists, as indicating persons in their natural character in contradistinction to artificial or fictitious persons created by law, is further elucidated by those jurists in their treatises upon the origin and capacities and objects of those artificial persons designated by the name of corporations. Thus, Mr. Justice, in the 18th chapter of his 1st volume, holds this language: "We have hitherto considered persons in their natural capacities, and have treated of their rights and duties. But as all personal rights die with the person, and as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be inconvenient, if not impracticable, it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons who maintain a perpetual succession and enjoy a kind of legal immortality. These artificial persons are called 'corporations.'" This same distinguished writer, in the first book of his Commentaries 123, says, "The rights of persons are such as concern and are annexed to the persons of men, and when the person to whom they are due is regarded, are called simply 'rights;' but when we consider the person from whom they are due, they are then denominated, 'duties.'" And again, cap. 10th of the same book, treating of the "people," he says, "The people are either 'aliens' -- that is, born out of the dominions or allegiance of the Crown -- or 'natives' -- that is, such as are born within it." Under our own systems of polity, the term "citizen," implying the same or similar relations to the government and to society which appertain to the term, "subject" in England, is familiar to all. Under either system, the term used is designed to apply to man in his individual character and to his natural capacities -- to a being or agent possessing social and political rights and sustaining social, political, and moral obligations. It is in this acceptation only, therefore, that the term "citizen," in the article of the Constitution, can be received and understood. When distributing the judicial power, that article extends it to controversies between "citizens" of different states. This must mean the natural physical beings composing those separate communities, and can by no violence of interpretation be made to signify artificial, incorporeal, theoretical, and invisible creations. A corporation, therefore, being not a natural person, but a mere creature of the mind, invisible and intangible, cannot be a citizen of a state, or of the United States, and cannot fall within the terms or the power of the above mentioned article, and can therefore neither plead nor be impleaded in the courts of the United States. Against this position it may be urged that the Page 55 U. S. 99 converse thereof has been ruled by this Court, and that this matter is no longer open for question. In answer to such an argument, I would reply that this is a matter involving a construction of the
Constitution, and that wherever the construction or the integrity of that sacred instrument is involved, I can hold myself trammeled by no precedent or number of precedents. That instrument is above all precedents, and its integrity everyone is bound to vindicate against any number of precedents if believed to trench upon its supremacy. Let us examine into what this Court has propounded in reference to its jurisdiction in cases in which corporations have been parties, and endeavor to ascertain the influence that may be claimed for what they have heretofore ruled in support of such jurisdiction. The first instance in which this question was brought directly before this Court was that of Bank of the United States v. Deveaux, 5 Cranch 61. An examination of this case will present a striking instance of the error into which the strongest minds may be led whenever they shall depart from the plain, common acceptation of terms or from well ascertained truths for the attainment of conclusions which the subtlest ingenuity is incompetent to sustain. This criticism upon the decision in the case of Bank v. Deveaux may perhaps be shielded from the charge of presumptuousness by a subsequent decision of this Court hereafter to be mentioned. In the former case, the Bank of the United States, a corporation created by Congress, was the party plaintiff, and upon the question of the capacity of such a party to sue in the courts of the United States this Court said, in reference to that question, "The jurisdiction of this Court being limited, so far as respects the character of the parties in this particular case, to controversies between citizens of different states, both parties must be citizens, to come within the description. That invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen, and consequently cannot sue or be sued in the courts of the United States unless the rights of the members in this respect can be exercised in their corporate name. If the corporation be considered as a mere faculty, and not as a company of individuals who, in transacting their business, may use a legal name, they must be excluded from the courts of the Union." The Court having shown the necessity for citizenship in both parties in order to give jurisdiction, having shown further, from the nature of corporations, their absolute incompatibility with citizenship, attempts some qualification of these indisputable and clearly stated positions, which, if intelligible at all, must be taken as wholly subversive of the positions so laid down. After stating the requisite of citizenship and showing that a Page 55 U. S. 100 corporation cannot be a citizen, "and consequently that it cannot sue or be sued in the courts of the United States," the Court goes on to add, "unless the rights of the members can be exercised in their corporate name." Now it is submitted that it is in this mode only, viz., in their corporate name, that the rights of the members can be exercised; that it is this which constitutes the character, and being, and functions of a corporation. If it is meant beyond this that each member, or the separate members, or a portion of them, can take to themselves the character and functions of the aggregate and merely legal being, then the corporation would be dissolved; its unity and perpetuity, the essential features of its nature, and the great objects of its existence, would be at an end. It would present the anomaly of a being existing and not existing at the same time. This strange and obscure qualification attempted by the Court of the clear legal principles previously announced by it forms the introduction to and apology for the proceeding adopted by it by which it undertook to adjudicate upon the rights of the corporation through the supposed citizenship of the individuals interested in that corporation. It asserted the power to look beyond the corporation, to presume or to ascertain the residence of the individuals composing it, and to model its decision upon that foundation. In other words, it affirmed that in an action at law, the purely legal rights asserted by one of the parties upon the record might be maintained by showing or presuming that these rights are vested in some other person who is no party to the controversy before it. Thus stood the decision of Bank of the United States v. Deveaux, wholly irreconcilable with correct
definition and a puzzle to professional apprehension until it was encountered by this Court in the decision of Louisville & Cincinnati Railroad Company v. Letson, reported in 2 How. 497. In the latter decision, the Court, unable to untie the judicial entanglement of Bank v. Deveaux, seem to have applied to it the sword of the conqueror; but unfortunately, in the blow they have dealt at the ligature which perplexed them, they have severed a portion of the temple itself. They have not only contravened all the known definitions and adjudications with respect to the nature of corporations, but they have repudiated the doctrines of the civilians as to what is imported by the term "subject" or "citizen" and repealed, at the same time, that restriction in the Constitution which limited the jurisdiction of the courts of the United States to controversies between "citizens of different states." They have asserted that "a corporation created by and transacting business in a state is to be deemed an inhabitant of the state, capable of being treated Page 55 U. S. 101 as a citizen for all the purposes of suing and being sued, and that an averment of the facts of its creation, and the place of transacting its business, is sufficient to give the circuit courts jurisdiction." The first thing which strikes attention in the position thus affirmed is the want of precision and perspicuity in its terms. The Court affirms that a corporation created by, and transacting business within a state is to be deemed an inhabitant of that state. But the article of the Constitution does not make inhabitancy a requisite of the condition of suing or being sued; that requisite is citizenship. Moreover, although citizenship implies the right of residence, the latter by no means implies citizenship. Again, it is said that these corporations may be treated as citizens for the purpose of suing or being sued. Even if the distinction here attempted were comprehensible, it would be a sufficient reply to it that the Constitution does not provide that those who may be treated as citizens may sue or be sued, but that the jurisdiction shall be limited to citizens only -- citizens in right and in fact. The distinction attempted seems to be without meaning, for the Constitution or the laws nowhere define such a being as a quasicitizen, to be called into existence for particular purposes -- a being without any of the attributes of citizenship, but the one for which he may be temporarily and arbitrarily created, and to be dismissed from existence the moment the particular purposes of his creation shall have been answered. In a political or legal sense, none can be treated or dealt with by the government as citizens but those who are citizens in reality. It would follow, then, by necessary induction from the argument of the Court that as a corporation must be treated as a citizen, it must be so treated to all intents and purposes, because it is a citizen. Each citizen if not under old governments certainly does, under our system of polity, possess the same rights and faculties, and sustain the same obligations, political, social, and moral, which appertain to each of his fellow citizens. As a citizen, then, of a state or of the United States, a corporation would be eligible to the state or federal legislatures, and if created by either the state or federal governments, might, as a native born citizen, aspire to the office of President of the United States -- or to the command of armies, or fleets, in which last example, so far as the character of the commander would form a part of it, we should have the poetical romance of the specter ship realized in our Republic. And should this incorporeal and invisible commander not acquit himself in color or in conduct, we might see him, provided his arrest were practicable, sent to answer his delinquencies before a court martial, and subjected to the penalties Page 55 U. S. 102 of the articles of war. Sir Edward Coke has declared, that a corporation cannot commit treason, felony, or other crime; neither is it capable of suffering a traitor's or felon's punishment, for it is not liable to corporeal penalties -- that it can perform no personal duties, for it cannot take an oath for the due execution of an office; neither
can it be arrested or committed to prison, for its existence being ideal, no man can arrest it; neither can it be excommunicated, for it has no soul. But these doctrines of Lord Coke were founded upon an apprehension of the law now treated as antiquated and obsolete. His lordship did not anticipate an improvement by which a corporation could be transformed into a citizen, and by that transformation be given a physical existence, and endowed with soul and body too. The incongruities here attempted to be shown as necessarily deducible from the decisions of the cases of Bank of the United States v. Deveaux and of Cincinnati & Louisville Railroad Company v. Letson afford some illustration of the effects which must ever follow a departure from the settled principles of the law. These principles are always traceable to a wise and deeply founded experience; they are therefore ever consentaneous and in harmony with themselves and with reason, and whenever abandoned as guides to the judicial course, the aberration must lead to bewildering uncertainty and confusion. Conducted by these principles, consecrated both by time and the obedience of sages, I am brought to the following conclusions: 1st. That by no sound or reasonable interpretation, can a corporation -- a mere faculty in law, be transformed into a citizen or treated as a citizen. 2d. That the second section of the Third Article of the Constitution, investing the courts of the United States with jurisdiction in controversies between citizens of different states, cannot be made to embrace controversies to which corporations and not citizens are parties, and that the assumption by those courts of jurisdiction in such cases must involve a palpable infraction of the article and section just referred to. 3d. That in the cause before us, the party defendant in the circuit court having been a corporation aggregate created by the State of New Jersey, the circuit court could not properly take cognizance thereof, and therefore this cause should be remanded to the circuit court with directions that it be dismissed for the want of jurisdiction. Order This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Page 55 U. S. 103 District of New Jersey, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this Court, that the judgment of the said circuit court in this cause be and the same is hereby affirmed with costs.
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