court ruled – Prosecute Bush Cheney http://prosecutebushcheney.org/ Sun, 17 Apr 2022 08:26:47 +0000 en-US hourly 1 https://wordpress.org/?v=5.9.3 https://prosecutebushcheney.org/wp-content/uploads/2021/08/cropped-icon-32x32.png court ruled – Prosecute Bush Cheney http://prosecutebushcheney.org/ 32 32 No common law right to start unauthorized vehicles, Georgia Supreme Court judge https://prosecutebushcheney.org/no-common-law-right-to-start-unauthorized-vehicles-georgia-supreme-court-judge/ Thu, 16 Dec 2021 19:04:18 +0000 https://prosecutebushcheney.org/no-common-law-right-to-start-unauthorized-vehicles-georgia-supreme-court-judge/ [ad_1] ATLANTA (AP) – Landowners are prohibited from starting unauthorized vehicles on their premises, Georgia’s highest court ruled on Tuesday. Forrest Allen sued the owner and operator of a DeKalb County mall and several of his tenants after his vehicle was immobilized in February 2018 and he had to pay $ 650 to have the […]]]>


[ad_1]

ATLANTA (AP) – Landowners are prohibited from starting unauthorized vehicles on their premises, Georgia’s highest court ruled on Tuesday.

Forrest Allen sued the owner and operator of a DeKalb County mall and several of his tenants after his vehicle was immobilized in February 2018 and he had to pay $ 650 to have the trunk removed.

The defendants argued on appeal to the Georgia Supreme Court that they had a common right to remove vehicles that entered their property. They also cited the age-old “distress damage doer” doctrine, which recognizes the right of a landowner to contain intruding cattle and keep them until the owner of the animal can be determined and pays. the landowner for damages, according to opinion.

The High Court rejected these arguments, saying that neither this doctrine nor the right to remove intruder vehicles gives owners the right to stop vehicles on their property.

“Indeed, there does not appear to be any legal authority recognizing a common law right to immobilize unauthorized vehicles located on private property and to detain them against the owner’s will until payment is received.” wrote Justice Shawn LaGrua.

Some municipalities in Georgia have ordinances that specifically allow the starting of unauthorized vehicles, but this is not the case everywhere.

Next article

Previous article

[ad_2]

]]>
Mall had no common law right to start vehicles, higher state court rules in car owner’s RICO lawsuit https://prosecutebushcheney.org/mall-had-no-common-law-right-to-start-vehicles-higher-state-court-rules-in-car-owners-rico-lawsuit/ Thu, 16 Dec 2021 08:00:00 +0000 https://prosecutebushcheney.org/mall-had-no-common-law-right-to-start-vehicles-higher-state-court-rules-in-car-owners-rico-lawsuit/ Homepage Daily News The mall did not have the customary right to… Trial & Litigation Mall had no common law right to start vehicles, higher state court rules in car owner’s RICO lawsuit By Debra Cassens-Weiss December 16, 2021, 10:05 a.m. CST Image from Shutterstock. A car owner who had to pay $650 to have […]]]>

Trial & Litigation

Mall had no common law right to start vehicles, higher state court rules in car owner’s RICO lawsuit

Image from Shutterstock.

A car owner who had to pay $650 to have an immobilizer boot removed from his tire will get a second crack at class action status in his racketeering lawsuit following a Georgia Supreme Court ruling Tuesday. .

In one Notice of December 14the court said a private shopping mall lot in DeKalb County, Georgia, had no common law right to apply boots to trespassing vehicles.

The state Supreme Court ruled in favor of plaintiff Forrest Allen, who sued the owner and operator of the parking lot, as well as commercial tenants in the adjacent mall, including Dollar Tree stores.

Allen has filed for class action status for his lawsuit alleging negligence, premises liability, forcible confinement, conversion and violation of Georgia’s Racketeer Influenced and Corrupt Organizations Act.

The court rejected two theories put forward by the defendants.

The first theory rejected was that starting is permitted because of a landowner’s common law right to carefully remove another’s property left on his land without permission.

The court said that the act of immobilizing an intruding vehicle is different from removing unauthorized property because immobilizing the vehicle perpetuates the trespass. In addition, Georgia’s towing law replaced, at least in part, the common law rule, the court said.

The second theory rejected was that starting is permitted under the common law doctrine of “doing distress damages”. The theory recognizes a landowner’s right to impound intruding livestock causing actual damage to property and hold them as collateral until the animal owner compensates the landowner for the damage.

The state Supreme Court said the doctrine applied only to livestock. And if it applied in this case, there must be proof of actual damage to the property, which did not happen.

“Defendants have not cited any authority in Georgia or any other jurisdiction where a court has applied the doer of distress doctrine to anything other than livestock or where the court has held that a landowner has the right to confiscate and detain personal property, such as an automobile, whose owner is readily identifiable,” the Georgia Supreme Court said.

“Indeed, there does not appear to be any statutory authority recognizing a common law right to immobilize unauthorized vehicles located on private property and hold them against the will of the owner until payment is received. .”

The court returned the lawsuit to the trial court for reassessment of the plaintiff’s motion for collective certification.

Hats off to Courthouse News Service.

]]>
Nevada Common Law Meaning of the Term “Substantial Completion” in the Statute of Repose White and Williams LLP https://prosecutebushcheney.org/nevada-common-law-meaning-of-the-term-substantial-completion-in-the-statute-of-repose-white-and-williams-llp/ https://prosecutebushcheney.org/nevada-common-law-meaning-of-the-term-substantial-completion-in-the-statute-of-repose-white-and-williams-llp/#respond Thu, 30 Sep 2021 07:00:00 +0000 https://prosecutebushcheney.org/nevada-common-law-meaning-of-the-term-substantial-completion-in-the-statute-of-repose-white-and-williams-llp/ [ad_1] The rest laws establish the determination by the legislature when the defendants should be released from all liability. As reported in Nevada Revised Statute (NRS) 11.202, the rest status for construction improvements in Nevada is six years after “substantial completion.” In Somersett Owners Ass’n v. Somersett Dev. Co., 492 P.3d 534 (Nev. 2021), the […]]]>


[ad_1]

The rest laws establish the determination by the legislature when the defendants should be released from all liability. As reported in Nevada Revised Statute (NRS) 11.202, the rest status for construction improvements in Nevada is six years after “substantial completion.” In Somersett Owners Ass’n v. Somersett Dev. Co., 492 P.3d 534 (Nev. 2021), the Nevada Supreme Court (Supreme Court) discussed when a construction improvement is substantially completed, as defined by common law, for the purposes of NRS 11.202. Because the plaintiff failed to establish that his complaint was filed within six years of when the rockery walls in issue were nearing completion, the Supreme Court upheld the lower court’s decision.

In this case, Q & D Construction, Inc. (Q & D) classified the property in 2006 and Parsons Bros. Rockeries, Inc. (Parsons) then built rock walls to support the terraced lots. This phase of construction was completed in December 2006, and Stantec Consulting Services, Inc. (Stantec) sent letters to Somersett Development Company, Ltd. (Somersett) indicating that the work had been inspected and approved. Although the expected lifespan of the rock walls was 50 years, some began to fail in 2011. In 2017, the Somerset Owners Association (SOA) sued Somersett, Parsons, Q&D and Stantec (collectively respondents) to recover the damage associated with the failing rock walls. The respondents, relying on NRS 11.202, brought a motion for summary judgment, which the lower court granted, and this appeal followed.

NRS 11.202 prohibits the initiation of actions more than six years after the substantial completion of the improvement of the property in question. NRS 11.2055 defines the term “substantial completion” and states that a property is to be considered substantially completed on the date that, among other things, a certificate of occupancy is issued for the improvement. Where, however, none of the applicable events (such as the issuance of a certificate of occupancy) occur, the date of substantial completion is determined by the rules of the common law. NRS 11.2055 (2). Addressing a question of first impression, the Supreme Court discussed when an improvement is substantially achieved under the common law. Adopting the definition of “substantial completion” offered by the American Institute of Architects (AIA), the court ruled that an improvement is essentially completed under common law at the “stage in the progress of the work when the work or designated part thereof is sufficiently complete in accordance with the contractual documents for the owner to occupy or use the work for the purpose for which it is intended. “

As the Supreme Court noted, the question of when an improvement is substantially complete is a factual inquiry, based on the circumstances of each case. In that case, given that the letters indicating that the rockery walls were nearly completed in 2006 were supported by the fact that Parsons had ceased construction at around the same time, the walls were virtually completed by December 2006 at the latest. Thus, the court ruled that the pursuit of SOA was prohibited by the statute of rest. Finding that SOA’s action was time-barred, the court rejected the opinions of SOA experts that the walls were essentially not complete until they were fit for use. that hadn’t happened yet. As the court noted, accepting this twist on the definition of AIA, in practice, would run counter to the rest statute. In addition, the deviations found in the construction standards were related to the quality of the construction, and not to the substantial completion of construction.

The Supreme Court also rejected the plaintiff’s argument that rest status should be paid to avoid injustice, as Somerset controlled the board of directors of the homeowners association until 2013. As noted by the court, most rest statutes can not be paid. Although the court did not resolve whether a toll exception applied, it ruled that in the absence of evidence of intentional fraud, the rest period was not subject to a fair toll. .

This case reminds us that rest laws are more definitive than prescriptions and, in general, cannot be paid. When faced with a rest status, subrogation practitioners should consider the statutory language of the applicable jurisdiction and when, as here, the rest period runs from “substantial completion”, determine the meaning of this term.

Print PDF

[ad_2]

]]>
https://prosecutebushcheney.org/nevada-common-law-meaning-of-the-term-substantial-completion-in-the-statute-of-repose-white-and-williams-llp/feed/ 0
Common law applies “in accordance with cultural norms” of parties seeking annulment: court https://prosecutebushcheney.org/common-law-applies-in-accordance-with-cultural-norms-of-parties-seeking-annulment-court/ https://prosecutebushcheney.org/common-law-applies-in-accordance-with-cultural-norms-of-parties-seeking-annulment-court/#respond Wed, 08 Sep 2021 12:57:00 +0000 https://prosecutebushcheney.org/common-law-applies-in-accordance-with-cultural-norms-of-parties-seeking-annulment-court/ [ad_1] The British Columbia Court of Appeal allowed annulment of the marriage on the grounds that the union was not consummated, stressing the “role that an honest and sincere religious belief can play in determining incapacity. “. In Kaur vs. Singh, 2021 BCCA 320, the court heard that the appellant, Prabhjot Kaur, had met her […]]]>


[ad_1]

The British Columbia Court of Appeal allowed annulment of the marriage on the grounds that the union was not consummated, stressing the “role that an honest and sincere religious belief can play in determining incapacity. “.

In Kaur vs. Singh, 2021 BCCA 320, the court heard that the appellant, Prabhjot Kaur, had met her spouse, the respondent, Gurvinder Partap Singh, at Selkirk College, where they were both students.

According to court documents, the two “decided to get married and did so in a civil ceremony held on February 6, 2019”.

“Their plan,” said the appellant, was “to delay the consummation of the marriage until after the Sikh religious ceremony which they planned to undergo later, in accordance with their tradition.”

Kaur explained that the couple “wanted to get married in a civil ceremony so that they could live together, which would be against their religion, but postponed the consumption until they had undergone a traditional Gurdwara ceremony.”

According to court documents, the couple lived in the same house, which they shared with friends, but they lived “separately”. The appellant testified that the relationship was in trouble and that the couple would have “a lot of arguments”.

The marriage was still not consummated when the appellant left the house. “It was effectively the end of the relationship,” the court noted.

Kaur asked for “a declaration annulling her civil marriage with the respondent” citing “non-consummation” as a reason. However, Justice J. Miriam Gropper of the British Columbia Supreme Court dismissed the motion.

According to court documents, Justice Gropper “accepted that there was no consummation of the marriage, but found that the parties had failed to meet the common law requirement of non-consummation resulting from a physical or psychological disability ”.

On appeal, Kaur argued that Gropper J. erred in failing to “give proper weight to the appellant’s belief in the necessity of a Sikh Gurdwara ceremony prior to consumption”; by failing to “take into consideration the consent of the respondent; ”And“ by concluding that there was no psychological disability ”.

Justice J. Christopher Grauer, writing for the Court of Appeal, noted that “the founding Canadian decision on annulment is Heil vs. Heil, [1942] RCS 160.

“Although seminal, it must be recognized as reflecting notions of gender roles which are now outdated,” he said.

In Heil, explained Judge Grauer, the Supreme Court ruled that: “The simple refusal of a woman to have marital relations because of her whim is not a sufficient reason to justify a judgment of nullity of the marriage; there must be some disability, which in some cases is a structural defect, but in some cases may result from a mental state creating an invincible aversion to the physical act of consuming. Such a mental state can be inferred from the proven facts, and justifies a decree of annulment of marriage.

Heil settled the law, “he noted,” and set out the test for granting an annulment order: there must be some disability, “which in some cases is a structural defect, but which can also result from a mental disorder. condition, with the effect of creating in the mind of the woman an aversion to the physical act of consumption. “

The judge acknowledged that the British Columbia Court of Appeal “upheld the Heil test in Juretic vs. Ruiz, 1999 BCCA 417, and in KHL vs. GQL, 2003 BCCA 313.

However, Judge Grauer wrote, “in the multicultural society reflected in our nation, the common law principles at issue here must be applied contextually, in accordance with the cultural norms of the parties seeking annulment.”

“This has been explored in Jomha [v. Jomaa 2010 ABQB 135], “he added.” I consider that a psychological disability consistent with the principles discussed in these cases can arise as significantly from sincere religious and cultural beliefs as other forms of psychological aversion, both of which are, contextually, a ” normal and predictable reaction ‘as discussed in Grewal [v. Sohal 2004 BCSC 1549]. “

“In this case, IMHO, the judge focused too much on the physical and psychological aspects of capacity in the traditional sense discussed in the cases. In this way, she did not fully appreciate, as we now must, the role that an honest and sincere religious belief can play in the determination of incapacity, ”said Judge Grauer.

The judge determined that the evidence “established that the parties’ decisions on how to manage their relationship were based on religious and cultural considerations.”

“They wanted to live together, but according to their cultural norms, they couldn’t do it without ceremony. Hence the civil ceremony. But once living together, they could not consummate the marriage in accordance with their religion until they underwent the traditional Sikh Gurdwara ceremony, and therefore did not consummate it. Although they had other reasons, including avoiding pregnancy, these did not require non-use. The real aversion to consumption arose from their religious beliefs, creating a real incapacity, ”he added.

Judge Grauer also pointed out that “it would have been useful for the judge, and would be useful for such cases in the future, to have more precise evidence concerning the cultural and religious norms of the parties and, above all, the manner and the extent to which these norms impacted the non-consummation of marriage.

“The applicant for annulment based on a psychological inability to consume, whether based on a sincere religious belief or otherwise, must establish a disability on the balance of probabilities,” he noted.

Judge Grauer, with the consent of Justices Peter Willcock and Joyce DeWitt-Van Oosten, decided to allow the appeal and annulled the marriage in a decision released on August 27.

Georgialee Lang, Independent Family Lawyer

Georgialee Lang, a freelance family law practitioner in Vancouver, said her first impression was that the BC Supreme Court chambers judge “was applying the law correctly.”

“Although these cases are relatively rare, it is clear that this decision is important,” she said, noting that the Court of Appeal “advanced the law to include religious and cultural beliefs as factors that shape an individual’s emotional and psychological mind and spirit.

“As the [British Columbia Court of Appeal] identified, the aversion to wholeness stemmed from the appellant’s religious beliefs, and the court recognized the powerful role that religion plays in the lives of those who are committed to the tenets of their faith. I think this case may have implications for other areas of law where arguments based on faith and culture are at play, ”she added.

Ari Wormeli, family lawyer and partner at YLaw in Vancouver, believes that “this decision is actually going to affect fewer people than it looks.”

“While the step of viewing a conscious and voluntarily assumed impediment (adherence to a set of religious principles) as ‘invincible aversion’ in the same way as, for example, the inability to achieve an erection unconsciously and unintentionally caused by psychological trauma could be considered a significant change, and although I am not an expert on religions or other philosophies, note that this was based on very narrow grounds and likely will not have wide application , at least not as it is, ”he explained.

“This is because when a lot of people get married, they have the religious ceremony around the same time,” Wormeli added, noting that “in this case, it didn’t happen”.

As an example, Wormeli explained that “if a Catholic person says, ‘No sex before marriage’ and then marries in a church ceremony, they will not be able to avail themselves of this new decision. because his religious principles are no longer an obstacle. “

“In terms of lessons for lawyers, it is that unusual bets sometimes pay off in terms of widening the eyes of the courts,” he added, noting that “it is conceivable in the future that this voluntary assumption of involuntary principles (i.e., you can choose to be a Jew, and in particular an Orthodox Jew, in which case wearing the kippah becomes obligatory if you are male) can be used to open again plus the door.

“If you see an angle of attack that has not been tried (especially a legal argument, where the standard is fairness and you don’t have to worry about deference) and you have a client who is ready to take that risk, go for that, ”he said.

Regarding takeaways in the future, Wormeli said “the question would be: if my client doesn’t fit into what I’ll call the ‘traditional’ cancellation categories, but wants everything Likewise a cancellation, you might delve into how your client’s reasons for not consummating the relationship might equate to the voluntary assumption of a previously dictated set of principles.

“In order to be really careful, if possible, expert evidence could be presented (from a religious leader or possibly a professor of philosophy) regarding the requirement for followers of a certain belief system to follow certain restrictions, ”he added.

Counsel for the appellant did not respond to the request for comment. The respondent represented himself on appeal.

If you have any information, ideas for articles or tips for The Lawyer Daily please contact Amanda Jérôme at Amanda.Jerome@lexisnexis.ca or dial 416-524-2152.

[ad_2]

]]>
https://prosecutebushcheney.org/common-law-applies-in-accordance-with-cultural-norms-of-parties-seeking-annulment-court/feed/ 0
DC Circuit Rejects New Applications for Common Law Immunity by Private Contract Agents of Foreign Sovereigns Suspected of Participating in State-Sponsored Hacking Program https://prosecutebushcheney.org/dc-circuit-rejects-new-applications-for-common-law-immunity-by-private-contract-agents-of-foreign-sovereigns-suspected-of-participating-in-state-sponsored-hacking-program/ https://prosecutebushcheney.org/dc-circuit-rejects-new-applications-for-common-law-immunity-by-private-contract-agents-of-foreign-sovereigns-suspected-of-participating-in-state-sponsored-hacking-program/#respond Wed, 08 Sep 2021 07:00:00 +0000 https://prosecutebushcheney.org/dc-circuit-rejects-new-applications-for-common-law-immunity-by-private-contract-agents-of-foreign-sovereigns-suspected-of-participating-in-state-sponsored-hacking-program/ [ad_1] In a notable ruling regarding the extent to which U.S. citizens acting on behalf of foreign sovereigns can claim immunity from civil lawsuits under U.S. law, the U.S. Court of Appeals for the DC Circuit upheld the refusal by the district court of ordinary foreign immunity in Broidy Capital Management LLC v. Muzin, n […]]]>


[ad_1]

In a notable ruling regarding the extent to which U.S. citizens acting on behalf of foreign sovereigns can claim immunity from civil lawsuits under U.S. law, the U.S. Court of Appeals for the DC Circuit upheld the refusal by the district court of ordinary foreign immunity in Broidy Capital Management LLC v. Muzin, n ° 20-7040 (September 3, 2021). The ruling denied immunity requests from US lobbyists and public relations officers suspected of participating in a foreign government-sponsored hacking and media smear campaign targeting a US citizen on US soil.

The ruling sets strict limits on the ability of private contractors to claim derivative foreign state immunity under federal common law. Particularly where the foreign government has not sought immunity from the State Department or otherwise sought legal protection for its alleged agents, U.S. private contractors of a foreign government bear an especially heavy burden to establish common immunity. law. And the complete lack of established practice in the United States to recognize the immunity of these private contractors, coupled with the absence of allegations that the foreign government specifically directed the tort conduct in question, supported the refusal of the immunity.

The plaintiffs in this case are Elliott Broidy, an American businessman who once served as vice president of finance for the Republican National Committee, and his company. The complaint alleged that in response to the complainants’ harsh criticism of the State of Qatar’s support for terrorist organizations, Qatar retaliated with the aim of damaging Broidy’s reputation. The complaint alleged a scheme in which Qatari-sponsored hackers infiltrated Broidy’s computer networks and stole confidential information. Aided by the defendants – US lobbyists and public relations professionals – the conspirators then distributed pirated materials to the media in an attempt to destroy Broidy’s reputation and his ability to influence US policy towards Qatar.

In one of a series of conspiracy cases, Broidy sued several US citizens (and a US public relations consultancy) allegedly involved in the Qatari venture in a District of Columbia Federal District court. . The complaint alleged violations of California state law as well as federal laws, including the Racketeer Influenced and Corrupt Organizations Act (RICO), the Stored Communications Act, the Computer Fraud and Abuse Act, and the Defend Trade Secrets Act. The defendants claimed they were immune from prosecution for their alleged role in the Qatari business and requested dismissal, arguing both “derivative” foreign sovereign immunity and common law immunity. “foreign officials”. The district court rejected both forms of immunity and concluded that several of the plaintiffs’ claims had been sufficiently argued and could therefore continue to be discovered.

The DC Circuit upheld the district court’s denial of immunity in a unanimous opinion from Judge Pillard, joined by Justices Randolph and Walker.

In dismissing the defendants’ immunity claims, the court began by recognizing that immunity is not available under the Foreign Sovereign Immunity Act (FSIA). Quoting Samantar v. Yousuf, 560 US 305, 325 (2010), the court noted that the FSIA deals with immunity only for foreign states and their subdivisions and agencies or political bodies, and not for individuals. As Samantar However, individuals can also claim immunity under common law.

Under Samantar, these claims are governed by a two-step analysis. First, the court asks if the US State Department made a “suggestion of immunity” on behalf of the defendants. If this is the case, the court will generally respect this suggestion and dismiss the lawsuit. But there was no suggestion of immunity here. Indeed, the Court considered “notable” that Qatar, “on whose behalf the defendants are said to have acted, has shown no interest in this case, whether by requesting a formal suggestion of immunity or otherwise”.

The DC circuit therefore proceeded to Samantar ‘s second stage, in which a court must decide for itself whether immunity is appropriate. Second-step courts typically seek to determine whether the asserted immunity claim is an established State Department policy to recognize, including reviewing past State Department decisions regarding immunity. Here, the DC Circuit concluded that past State Department practice did not support immunity for individuals where, like here, the foreign state did not seek immunity on their behalf and they simply acted as arm’s length entrepreneurs for that foreign state. Notably, the Court ruled that foreign official immunity could not be based on the mere fact that certain defendants were registered for Qatari agents under the Foreign Agents Registration Act: “[N]the State Department has never suggested, nor has this court ruled, that registered foreign agents are entitled to sovereign immunity of their principals under the law. ”

Finally, the “close ties of the parties and claims against the United States” count against immunity. The defendants were all US citizens, and the court cited previous State Department statements that those enjoying the protections of US law should normally be subject to the jurisdiction of US courts when they violate US law, especially when being sued by other US citizens for driving in the United States. None of these factors can be determinative by themselves, but taken together they weigh heavily against common law immunity.

The DC Circuit also rejected the defendants’ alternative argument, which invoked an alleged doctrine of “derivative” foreign sovereign immunity. The court raised significant doubts as to the existence of such a doctrine, derived from cases involving American entrepreneurs claiming immunity from the federal government: “This court has never suggested that a doctrine of immunity derivative could apply in the context of foreign sovereign immunity ”. But even if that were the case, the domestic entrepreneur business from which it would derive only allows such derivative immunity when the contested actions have been “specifically ordered” or “directed” by the foreign sovereign. This was not the case here, where (according to the complaint) the defendants’ agreement with Qatar left them a great deal of latitude in how to achieve their objectives.

Broidy strongly suggests that U.S. citizens and residents who violate U.S. law as agents of foreign sovereigns will not be able to claim foreign conduct-based immunity at common law absent a suggestion of immunity from the Department of ‘State. And the ruling leaves claims of foreign sovereign immunity “derivative” on uncertain grounds in the DC circuit, but clearly denying such immunity in the absence of clear claims that the foreign government directed the conduct at issue.

[ad_2]

]]>
https://prosecutebushcheney.org/dc-circuit-rejects-new-applications-for-common-law-immunity-by-private-contract-agents-of-foreign-sovereigns-suspected-of-participating-in-state-sponsored-hacking-program/feed/ 0
Common Law: Mandate of the school mask – what is the current state of the law? – Columns https://prosecutebushcheney.org/common-law-mandate-of-the-school-mask-what-is-the-current-state-of-the-law-columns/ https://prosecutebushcheney.org/common-law-mandate-of-the-school-mask-what-is-the-current-state-of-the-law-columns/#respond Thu, 02 Sep 2021 17:14:28 +0000 https://prosecutebushcheney.org/common-law-mandate-of-the-school-mask-what-is-the-current-state-of-the-law-columns/ [ad_1] I am super confused. I know AISD has a mask warrant. But I also know Governor Abbott doesn’t want masks. And I know there have been a ton of battles in court in recent weeks over who should decide. But honestly, I have no idea what the current state of affairs is. Are masks […]]]>


[ad_1]

I am super confused. I know AISD has a mask warrant. But I also know Governor Abbott doesn’t want masks. And I know there have been a ton of battles in court in recent weeks over who should decide. But honestly, I have no idea what the current state of affairs is. Are masks still mandatory in Austin schools? Is the governor’s no-mask rule still in place?

Yes and yes. You are right, it can all be confusing. The situation is fluid, with courts at all levels in Texas having rendered conflicting decisions in the past month. Here is a brief summary of the events of August and the current situation at the end of August 2021.

Governor Abbott previously issued an executive order (Executive Order GA-36) that ended the statewide mask mandate. The ordinance expressly prohibits local governments from requiring that a person wear a mask. to wear a face cover “). The order extends to public schools, where at present “no student, teacher, parent or other staff member or visitor may be required to wear a face covering.”

Many counties, towns and independent school districts (ISDs) have either openly challenged the order or ignored it altogether, continuing with school mask mandates. Ken Paxton, the state attorney general, has released a list of more than fifty local government entities that he says are not complying with the governor’s order. The fundamental question is which government officials – the governor or locally elected officials – should have the legal capacity to decide what the government’s position should be on school mask mandates.

The counties of Dallas and Bexar took the lead in challenging the governor’s order by filing a temporary restraining order, which essentially asked local district court judges to authorize the county and independent school district (ISD ) to apply the mask warrant on a temporary basis pending future merits proceedings. District court judges ruled in favor of local governments and authorized school mask warrants as an interim litigation over the issue ensued. Austin / Travis County filed a similar lawsuit and obtained a similar ruling from a local Travis County district court.

Paxton’s office appealed some of those decisions to the Texas Supreme Court, the highest civil court in Texas, where all nine justices are Republican. After settling some procedural irregularities, the Supreme Court finally ruled against the local governments. The Supreme Court has ruled that the “status quo” of allowing the governor to ban mask warrants will continue while lower courts deal with the substantive issue.

The city of Austin and Travis County, which were not parties to the Texas Supreme Court case, continue to order the wearing of masks in public buildings and schools so that AISD continues to enforce the mandate of masks. Travis County Judge Andy Brown recently said “[u]Until we find ourselves in a dispute directly with the governor, we will maintain our requirement that public schools require masks in place. ”

Please submit topic suggestions, questions and comments to thecommonlaw@austinchronicle.com. Submitting potential topics does not create an attorney-client relationship, and any information submitted is likely to be included in future columns.

Marrs, Ellis & Hodge LLP, www.jmehlaw.com.

The material in this column is for informational purposes only. It does not constitute or replace legal advice. For advice on your specific facts and circumstances, consult a licensed lawyer. You can contact the Lawyer Referral Service of Central Texas, a nonprofit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.

[ad_2]

]]>
https://prosecutebushcheney.org/common-law-mandate-of-the-school-mask-what-is-the-current-state-of-the-law-columns/feed/ 0
More You Know: Supreme Court of Canada Clarifies Common Law’s Discoverability Principle – Litigation, Mediation and Arbitration https://prosecutebushcheney.org/more-you-know-supreme-court-of-canada-clarifies-common-laws-discoverability-principle-litigation-mediation-and-arbitration/ https://prosecutebushcheney.org/more-you-know-supreme-court-of-canada-clarifies-common-laws-discoverability-principle-litigation-mediation-and-arbitration/#respond Thu, 05 Aug 2021 07:00:00 +0000 https://prosecutebushcheney.org/more-you-know-supreme-court-of-canada-clarifies-common-laws-discoverability-principle-litigation-mediation-and-arbitration/ [ad_1] To print this article, simply register or connect to Mondaq.com. Although procedural in nature, limitation periods are among the most important rules for litigants and litigants — taking too long to present your claim, and you may be prevented from seeking redress. Fortunately, the discoverability principle generally rules out the limitation period before the […]]]>


[ad_1]

To print this article, simply register or connect to Mondaq.com.

Although procedural in nature, limitation periods are among the most important rules for litigants and litigants — taking too long to present your claim, and you may be prevented from seeking redress. Fortunately, the discoverability principle generally rules out the limitation period before the claimant knows they have a claim. But decisive when whether a claimant discovered or should have discovered a claim is a contextual issue based on the claimant’s knowledge of material facts. In Grant Thornton LLP v. New Brunswick, 2021 SCC 31, the Supreme Court of Canada clarified the role of the common law rule of discoverability in the application of provincial limitation laws, and the standard of knowledge required to “discover” a claim under of the common law standard.

What would you like to know

  • Limitation statutes can codify, limit or oust the common law rule of discoverability.
  • Whether a statute of limitations has changed or ousted the common law rule is a matter of statutory interpretation. Clear legislative language is needed to oust the common law rule.
  • The degree of knowledge required to uncover a claim is “a plausible inference of responsibility”, more than mere suspicion or speculation, but less than certainty.

Background

In 2008, Atcon Group of Companies asked the Province of New Brunswick to guarantee certain loans it needed to meet its financial obligations. The province has agreed to provide the guarantees, on condition that Atcon receives an external review of its assets by an audit firm. The province has agreed that Atcon’s auditor Grant Thornton could conduct the external review.

In its audit report, Grant Thornton considered Atcon’s statements to be a fair representation, in all material respects, of Atcon’s financial condition. Based on Grant Thornton’s audit, the province turned over the loan guarantees to Acton.

Shortly thereafter, Atcon’s financial situation deteriorated and the lender asked the province to pay the loan guarantees. The province paid the guarantees and, at the same time, retained the services of an audit firm to perform a review of the same financial statements reviewed by Grant Thornton. The province’s audit firm provided a different report than Grant Thornton’s: Acton’s financial statements were not in accordance with GAAP and contained various material errors, including an overestimation of its assets and net income. This report was provided to the province in draft form on February 4, 2011. The report was finalized on November 30, 2012, with only minor grammatical changes.

On December 12, 2012, the Deputy Minister of Economic Development filed a formal complaint against Grant Thornton, attaching the province’s audit report. A year and a half later, on June 23, 2014, the province sued Grant Thornton for negligence. Grant Thornton requested that the province’s claim be summarily dismissed on the basis that it was prescribed by the two-year limitation period.

Two approaches to discoverability

Grant Thornton’s motion was about the standard to be applied in determining whether a claimant possesses the requisite level of knowledge to have “discovered” a claim, which triggers the two-year limitation period. As in most provinces, New Brunswick statute of limitations provides that a claim is discovered when a claimant “knew or should reasonably have known” of certain material elements of the claim.

The Motions Judge rendered summary judgment, finding that the province “knew or should have known” that it had At first glance grounds for inferring that she had a potential cause of action against the defendants as of the date she paid $ 50 million to repay the Atcon loan. In the alternative, he concluded that the province had the requisite knowledge when it received the draft report from its audit firm in February 2011.

The Court of Appeal reversed the decision, finding that the motions judge had applied the wrong test in considering “prima facie grounds for inferring … a potential cause of action”. Instead, the Court of Appeal determined that until Grant Thornton produced its audit-related records for the province’s inspection (which it refused to do), the province could not not know that the verification was not compliant.

The Supreme Court’s decision

The Supreme Court unanimously overturned the Court of Appeal’s decision and restored the motions judge’s ruling that the province’s claim was time-barred. However, he rejected the approaches to discoverability applied by the two lower courts. The Court (1) ruled on the role of the common law discovery rule in the application of the limitation period and (2) affirmed that a claim is discovered when a plaintiff has knowledge, real or suspected, material facts upon which a “plausible inference claim” of liability on the part of the defendant can be drawn.

The discoverability of the common law

The Supreme Court began its analysis with a review of the common law discovery rule: “a cause of action arises for the purposes of a limitation period when the material facts on which it is based have been or would have been discovered. had to be discovered by the applicant through the exercise of due diligence.1 The rule seeks both to avoid the unfairness of excluding a claim before the claimant becomes aware of it and to realize the underlying rationale for limitation periods (the guarantee of rest, the risk of stale evidence, and the hope that the complaints will be pursued quickly).

The Court explained that the common law rule is an interpretive tool for interpreting limitation statutes. However, provincial statutes of limitation can codify, limit or oust the common law rule. Although the Court noted that the extent to which the common law rule applies is a matter of statutory interpretation, “clear legislative language” is necessary to set aside the common law rule.

After reviewing New Brunswick’s discoverability provision, the Court ruled that it codified the common law rule of discoverability.

The degree of knowledge required

The court disagreed with either court below on the level of knowledge required to uncover a claim and trigger the limitation period. Instead, he held that “a claim is discovered when a claimant has knowledge, real or suspected, of material facts upon which a plausible inference of liability on the part of the defendant can be drawn.” Where the provision sets out material facts of which the applicant must have actual or presumed knowledge, the terms of that provision shall prevail.

What is a “plausible inference” of liability? The Court held that this is a case which gives rise to a “permissible inference of fact”. The standard requires more than mere suspicion or speculation, but does not go so far as to require certainty of responsibility. A claimant does not need to know the exact type of harm they suffered or the extent or cause of the harm in order for the limitation period to begin to run.

The Court held that it is permissible to assess both direct evidence and circumstantial evidence to determine the state of knowledge of a claimant. If the evidence shows that the claimant should have discovered the material facts by exercising due diligence, implied knowledge will be established.

In that case, the Court found that the Province had actual or suspected knowledge of its claim against Grant Thornton as of the date it received its auditor’s interim report indicating that Atcon had made various material errors in its financial statements. . The Court of Appeal had set too high a standard by requiring the province to be aware of the constituent elements of negligence, as this might require a claimant to be aware of facts – such as a breach of a standard of care – which do not could only be known through the process of discovery. The province did not need access to the files relating to Grant Thornton’s audit to infer a breach of the standard of care.

The unanswered question

While the Supreme Court said that a statute of limitations would begin to run when the plaintiff should have discovered the material facts by exercising “due diligence”, Grant Thornton did not give the Court an opportunity to rule on what constitutes due diligence. This issue is an often contentious and fact-specific issue that is likely to remain an important feature of limitation disputes.

Footnote

1 Central Trust Co. v Rafuse, [1986] 2 SCR 147, at p 224, citing Kamloops (City of) vs. Nielsen, [1984] 2 RCS 2; see also Ryan vs. Moore, 2005 SCC 38, [2005] 2 SCR 53, at paragraphs 2 and 22

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

[ad_2]

]]>
https://prosecutebushcheney.org/more-you-know-supreme-court-of-canada-clarifies-common-laws-discoverability-principle-litigation-mediation-and-arbitration/feed/ 0
Common law and Equitable LLC dissolution: Going, Going,. . . | Farrell Fritz, PC https://prosecutebushcheney.org/common-law-and-equitable-llc-dissolution-going-going-farrell-fritz-pc/ https://prosecutebushcheney.org/common-law-and-equitable-llc-dissolution-going-going-farrell-fritz-pc/#respond Mon, 19 Jul 2021 07:00:00 +0000 https://prosecutebushcheney.org/common-law-and-equitable-llc-dissolution-going-going-farrell-fritz-pc/ [ad_1] Recently, we wrote two articles focusing on the ongoing dispute over whether New York law recognizes a viable cause of action for the “ordinary” or “fair” dissolution of a limited liability company. . In October 2020, I blogged on a dismissal decision prior to response in Pachter vs. Winiarsky, in which a New York […]]]>


[ad_1]

Recently, we wrote two articles focusing on the ongoing dispute over whether New York law recognizes a viable cause of action for the “ordinary” or “fair” dissolution of a limited liability company. .

In October 2020, I blogged on a dismissal decision prior to response in Pachter vs. Winiarsky, in which a New York court first upheld an application to dissolve a common law LLC, even when the court, in the same decision, held that the petition failed to apply for legal dissolution under Article 702 of the Law on Limited Liability Companies.

In May 2021, Pierre Mahler blogged on a second dismissal decision prior to response in the Pachter case, in which the court considered the sufficiency of a petition / complaint amended filed after the issuance of the initial dismissal decision. In the second Pachter decision, the court essentially reversed, dismissed the common law / equity application for dissolution, but reinstated the section 702 application for dissolution.

On July 12, 2021, Brooklyn Commercial Division Judge Leon Ruchelsman issued the third decision in the knock-down-drag-out Pachter litigation over whether the common law / equitable dissolution of an LLC exists as a viable cause of action in New York City. This decision was made through a petition from Pachter for leave to challenge the previous dismissal.

Supporting arguments

The legal arguments put forward by the parties are interesting, so I will devote some time to the briefs, which you can read here, here, and here.

In his moving papers, Pachter argued:

Equitable dissolution, also known as common law dissolution, is a well-established doctrine allowing members of LLCs to dissolve when the management of the LLC has engaged in certain “egregious conduct” towards the LLC or other members. See Lemle vs. Lemle, 92 AD3d 494, 500 (1st Dep’t 2012).

I would better describe this argument as a “stretch”. Lemlé was not an LLC dissolution case. The appeal decision in Lemlé involved multiple companies, but no LLCs. Lemlé certainly did not address the dissolution of the common law LLC, a topic that no New York appeals court has addressed directly (but we’ll get to that later). In fact, in another section of his brief, Pachter acknowledged the lack of guidance from the appeals court:

The Applicant acknowledges that the novelty and complexity of the issues in this case will almost certainly require appellate review. [but] rather than wait for approval by the appeal of the equitable dissolution — in which case the parties would have to repeat the discovery and trial — the best course of action would be to reinstate the claim and allow the discovery to be made. and the trial to move forward in the meantime on all of the issues raised in the amended complaint.

On the ultimate merits of whether New York law would recognize the dissolution of the common law LLC, Pachter drew an analogy with other areas of LLC case law where courts have recognized common law remedies not found in the written text of the LLC law, arguing:

Equitable dissolution applies to LLCs. In Tzolis vs. Wolff, 10 NY3d 100 (2008), the Court of Appeal held that all well-established equitable doctrines for the remedy of damages caused by trust companies are available in the context of the LLC in the absence of a “clear legislative mandate to the contrary “.

This is another “stretch”. We have written on Tzolis vs. Wolff Many times. While this may be the most important LLC case to date to reach the Court of Appeal, establishing the general principle that certain “fair” / “common law” doctrines apply to LLCs, it does not. She certainly did not go so far as to say that “” all well-established fair doctrines for redressing damages caused by trust companies are available in the LLC context, “unless prohibited by LLC law.

On the contrary, as Pachter pointed out in other sections of his brief, there are three main lines of case law important to equitable concepts applicable to other forms of LLC entity:

The gist of Pachter’s argument was that the court should draw inspiration from these three lines of authority and import a fourth into LLC law: equity / common law dissolution, which originates in corporate law. companies.

Opposition arguments

In their opposition brief, the respondents argued that the main LLC dissolution case in New York, Case of 1545 Ocean Ave, LLC, 72 AD3d 121 (2d Dept 2010), categorically prohibits any notion that the courts of New York could apply common corporate law dissolution standards to LLCs:

In . . . LLCL 702, the Legislature can only have wished that the standard of dissolution provided for therein remains the sole basis for the judicial dissolution of a limited liability company. In other words, since the legislature, in determining the criteria for the dissolution of various business entities in New York, did not intersect these grounds from one type of entity to another, it would be inappropriate for this Court to import the reasons for the dissolution of the Business Company Law or Company Law to the LLCL.

The speaker Kassab Decision

On June 22, 2021, the same day Pachter’s re-argumentation motion was submitted for decision, the Appeals Division – Department Two released two important new decisions (available here and here) in the Kassab litigation. Like I written a few weeks ago, one of the decisions contains the following language echoing Ocean Avenue: “The Limited Liability Company Law 702 provides the sole basis for the judicial dissolution of a limited liability company and includes a “stricter” standard than that for the dissolution of a company.”(Citations omitted; emphasis added).

The re-argumentation decision

In his decision, Ruchelsman J. rejected for the second time Pachter’s request to recognize a viable cause of action for the dissolution of the common law, rendering two essential legal decisions.

First, the court ruled:

In Case of 1545 Ocean Avenue . . . the court ruled that the only basis for the dissolution of a limited liability company was the grounds set out in the Law on Limited Liability Companies § 702, namely judicial dissolution and that it was inappropriate “to import the grounds for dissolving the Law on Commercial Companies or the Law on Limited Liability Companies. Liability company law. ‘ Indeed, there are no cases which apply anything other than judicial dissolution to limited liability companies. The fact that other remedies are available to limited liability companies, such as piercing the corporate veil or the business judgment rule, does not mean that other methods of dissolution are possible. [Although] The petitioner argues that there is no reason why equitable dissolution should be prohibited when it is available for entities which are so similar to limited liability companies. . . it is a political argument which cannot go beyond the clear directive of Case of 1545 Ocean Avenue. Indeed, this jurisdiction is bound by Case of 1545 Ocean Avenue which interpreted Law 702 on Limited Liability Companies as prohibiting any other form of dissolution.

Second, the court ruled:

The petitioner further claims that “the law supports the viability of an equitable dissolution”. While this is certainly true in the case of ordinary companies and it may well be that the applicant has demonstrated the sufficiency of proof necessary to obtain a fair dissolution in general, this is not at all true. when it comes to limited liability companies. The cases cited by the petitioner do not support such equitable dissolution for limited liability companies. Tzolis v. Wolff. . . ruled that derivative actions were permitted in a limited liability company, however, this has nothing to do with the possibility of other forms of dissolution. In addition, in Mizrahi v. Cohen. . . the dissolution that occurred was “judicial” in accordance with Law 702 on Limited Liability Companies. . Again, while arguments based on logic or common sense may seem compelling, at this time there is no basis for a dissolution of a limited liability company that is not judicial.

Rule of law after Pachter

In PachterIn the trio of common law decisions, the dissolution of the LLC has shown brief signs of promise as a new cause of action, but now appears to be of questionable origin unless an appeals court or another. trial court would not find such a claim viable under New York law.

For petitioners / complainants, one can understand the appeal of a catch-all and non-statutory dissolution request embracing “”flagrant breaches of fiduciary duty as a means of dissolving an LLC. As our regular readers know, with few exceptions, breach of fiduciary duty, oppression, or even exclusion from the LLC, is often not enough to establish grounds for dissolution under the standards of the LLC. Case of 1545 Ocean Ave. There is a growing body of case law rejecting at the pre-response stage petitions under Section 702 alleging these grounds for dissolution (you can read some of the recent examples we blogged about. here, here, here). There is also a growing number of appeal decisions affirming these revocation grants, even going so far as to overturn refusals of revocation (the most recent being Kassab last month; we find two others here and here).

All of this shows that the means for members to dissolve a New York LLC appears to be shrinking, not expanding, which makes the operating agreement all the more important. If desired, creative writers of operating agreements, especially those representing non-controlling members, might consider listing in the operating agreement the rights and obligations that the parties consider to be truly vital. , the violation of which may constitute grounds for dissolution under SARL Law 701 (2) allowing dissolution in the event of “the occurrence of events specified in the operating agreement”. While this rarely happens in practice, it can be an approach to try to anticipate and deal with the fact that under New York’s Judicial Dissolution Act breaking up may be difficult to do.

[View source.]

[ad_2]

]]>
https://prosecutebushcheney.org/common-law-and-equitable-llc-dissolution-going-going-farrell-fritz-pc/feed/ 0
Supreme Court Turns to Common Law for Guidance in Fourth Amendment Cases https://prosecutebushcheney.org/supreme-court-turns-to-common-law-for-guidance-in-fourth-amendment-cases/ https://prosecutebushcheney.org/supreme-court-turns-to-common-law-for-guidance-in-fourth-amendment-cases/#respond Tue, 06 Jul 2021 07:00:00 +0000 https://prosecutebushcheney.org/supreme-court-turns-to-common-law-for-guidance-in-fourth-amendment-cases/ [ad_1] Supreme Court of the United States The Supreme Court ruled on three Fourth Amendment cases during the October 2020 legislature. They shared several characteristics. First, the police lost them all, which is unusual for a court that has generally sided with law enforcement in search and seizure cases. Second, none have resulted in a […]]]>


[ad_1]

Supreme Court of the United States

The Supreme Court ruled on three Fourth Amendment cases during the October 2020 legislature. They shared several characteristics.

First, the police lost them all, which is unusual for a court that has generally sided with law enforcement in search and seizure cases. Second, none have resulted in a significant change in Fourth Amendment law, although each has provided clarification that will certainly be important in some cases. And third, the court has repeatedly engaged in a lengthy review of the common law starting in 1791 to decide the meaning of the Fourth Amendment today.

This certainly shows the influence of having several originalist judges and provides an important lesson for lawyers who brief and argue cases in the High Court.

Exceptions to the Mandate Requirement

The Supreme Court has often insisted on the special protection of the home under the Fourth Amendment. Police usually need a warrant before entering and searching a person’s home. But it is not absolute; there are exceptions. In two cases, this term implied exceptions to the requirement of a warrant.

One is if the police are “chasing” a person suspected of a crime. In cases such as Warden v. Hayden and Payton v. new York the court expressly recognized that the police can enter a house without a warrant if they are pursuing a suspect. But what if the accused person is suspected of having committed a crime?

That was the problem in Lange v. California. Arthur Lange was driving with his radio which howled and honked. Such excessive noise is a misdemeanor in California. A policeman observed this and turned on the lights to arrest Lange. But Lange drove down his driveway and parked in his garage. The policeman got out of his car and entered the garage. He saw that Lange was drunk and arrested him.

Lange argued that the officer violated the Fourth Amendment by entering the garage without a warrant. The officer maintained that it was allowed because he was in pursuit of her. The lower courts sided with the police and found no Fourth Amendment violations.

The Supreme Court overturned an opinion of Justice Elena Kagan. The court, however, declined to create a clear rule that prosecution never justifies warrantless entry when the felony is a misdemeanor. Instead, the court said it would require a case-by-case analysis and that warrantless entry, when there is a prosecution of a misdemeanor case, would be justified if there is a risk of destruction. evidence or leakage or imminent harm. to others.

In fact, the court went so far as to say that this “approach will in many, if not most, cases lead to a warrantless entry.” But the court expressly rejected a rule that would have allowed warrantless entry whenever there is prosecution in a misdemeanor case. Judge Kagan wrote that “the need to prosecute a misdemeanor does not trigger a hard and fast rule allowing home entry, even in the absence of a law enforcement emergency.” Justice Kagan justified this conclusion, in part, on a detailed examination of the common law from 1791 when the Fourth Amendment was enacted.

The other case involving exceptions to the warrant requirement was Caniglia vs. Strom. A married couple quarreled. The woman left the house and stayed in a hotel that night. She feared that her husband would hurt himself when she could not reach him by phone. She called the police, who found him at home in great shape. However, the police took him into custody for a mental health assessment. Officers then returned to the home and, without a warrant, seized his firearms.

The man sued the police for violating his Fourth Amendment rights. The officers argued that their actions were justified by a “community caretaking” exception to the warrant requirement. The United States’ First Circuit Court of Appeals sided with the police. The Supreme Court, however, in a unanimous opinion of Justice Clarence Thomas overturned. In one of the shortest majority opinions of the year, the court made it clear that community guarding is a very narrow exception that does not apply to searches of people’s homes.

The community guarding exception comes from Cady c. Dombrowski, in 1973. A police officer on leave, Dombrowski, was arrested for impaired driving and his car was towed to a police lot. The arresting officer thought Dombrowski’s duty revolver may still be in the car and searched the vehicle. During the search, the officer found evidence that linked Dombrowski to a murder. This crucial evidence led to Dombrowski’s conviction.

The Supreme Court, 5-4, found that the warrantless search of the car did not violate the Fourth Amendment and therefore the evidence obtained was admissible. The court invoked the automobile exception to the warrant requirement. But the court also pointed out that the police had not violated the Fourth Amendment because they were involved in “community guarding.”

Since Cady c. Dombrowski, there has been confusion in the lower courts about this exception and its application. In Caniglia vs. Strom, the court clarified that it did not apply to house searches. Judge Thomas said: “What is reasonable for vehicles is different from what is reasonable for homes. Cady has recognized this, and this court has repeatedly “refused to extend the scope of … exceptions to the warrant requirement to allow warrantless entry into the house.”

It sounds simple and straightforward, but there is another exception to the warrant requirement where there are “urgent circumstances”. Eliminating the community caretaking exception does not seem to matter much where the police can search without a warrant if they reasonably believe there is an emergency.

What is a seizure?

When is a person seized by police for the purposes of the Fourth Amendment? In United States v. Mendenhall, in 1980, the court declared that a person is seized if a reasonable person in the circumstances “would have believed that he was not free to go”. In California v. Hodari D., in 1991, the court ruled that the pursuit of a suspect by the police was not a seizure; the seizure did not take place until the person had been approached by the officer. The result was that the evidence filed by the person during the prosecution was admissible against him. As the prosecution was not a search, no reasonable suspicion or probable cause was required.

Torres v. Madrid, decided this term, again raised the question of whether a person had been seized. Four New Mexico State Police officers arrived at an apartment complex in Albuquerque with a warrant for a woman. Officers saw Roxanne Torres, who was not the wanted person, get into her car and attempted to speak to her. Apparently she didn’t notice them until one of them tried to open her car door. She thought the officers were car thieves and pressed the gas to escape.

Police fired 13 shots at Torres, hitting her twice in the back and temporarily paralyzing her left arm. Torres walked through the hail of bullets, exited the apartment complex, and pulled up a short distance in the parking lot of a shopping center. Torres saw an unoccupied car with its engine running, stole it, and drove 120 kilometers to a hospital. The police arrested her the next day. Torres made a clear plea of ​​an aggravated flight of a law enforcement officer, assault on a peace officer and the illegal seizure of a motor vehicle. But she sued the police for excessive force.

In Graham vs. Connor, in 1989, the court ruled that excessive police force is a seizure that violates the Fourth Amendment. But was Torres seized because she was still able to travel 75 miles? The court ruled in his favor and ruled that “the application of physical force to a person’s body with the intention of restraining him is a seizure, even if the force fails to restrain the person”. Chief Justice John G. Roberts Jr. wrote for the court, noting: “A seizure requires the use of force with the intention of restraining. Accidental force will not be admissible. Force applied intentionally for other purposes will also not satisfy this rule. Roberts justified this conclusion, in part, by a careful examination of the common law prior to 1791.

Judge Neil M. Gorsuch wrote a vehement dissent, joined by Justices Thomas and Samuel A. Alito. He argued that the woman was not seized, as evidenced by the fact that she traveled 75 miles. He argued that a person is not seized until the police have taken possession of a person.

As mentioned, Torres v. Madrid in the context of a civil action for excessive police force. It is much more difficult to imagine the context in a criminal case, when there is a request to suppress evidence, where it is likely to matter. Hodari D. remains the law: Police pursuit of a suspect is not Fourth Amendment seizure.

In conclusion

The court developed an elaborate body of doctrines relating to the Fourth Amendment. They occur in countless cases, criminals and civilians, every day. The three cases of this term shed light on certain aspects of the Fourth Amendment and are revealing of the court’s methodology, emphasizing the common law rules as they existed in 1791.


Erwin Chemerinsky is Dean of the University of California at the Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and litigation on appeal. He is the author of several books, including The case against the Supreme Court (Viking, 2014). His latest book is Religious clauses: the arguments in favor of the separation of Church and State, written with Howard Gillman (Oxford University Press, 2020).

[ad_2]

]]>
https://prosecutebushcheney.org/supreme-court-turns-to-common-law-for-guidance-in-fourth-amendment-cases/feed/ 0
Common law constructive dismissal prosecution https://prosecutebushcheney.org/common-law-constructive-dismissal-prosecution/ https://prosecutebushcheney.org/common-law-constructive-dismissal-prosecution/#respond Mon, 28 Jun 2021 07:00:00 +0000 https://prosecutebushcheney.org/common-law-constructive-dismissal-prosecution/ [ad_1] Click here to watch the video Brittany Taylor here with another legal update, and this one is a doozy. You will probably recall that in April, Stuart recorded a vlog regarding the Coutinho case, an unprecedented decision that ruled for the first time that an employee who had been temporarily laid off during the […]]]>


[ad_1]

Click here to watch the video

Brittany Taylor here with another legal update, and this one is a doozy.

You will probably recall that in April, Stuart recorded a vlog regarding the Coutinho case, an unprecedented decision that ruled for the first time that an employee who had been temporarily laid off during the pandemic had been implicitly dismissed from his job.

The move had huge implications for employers, many of whom had no choice but to lay off workers during the pandemic, when business fell sharply or when the government ordered shutdowns. If the temporary layoff of an employee constituted constructive dismissal, even though it happened during the pandemic, amid impossible circumstances, then many employers could face significant legal liability with respect to benefits. starting point. However, less than two months later, another Ontario court ruled on this issue and shockingly came to the completely opposite conclusion.

In Taylor and Hanley Hospitality Inc., the employee in question was laid off from her job at the start of the pandemic in March of last year. She applied for constructive dismissal following this layoff. The employer in this case argued that the Ontario government had asked it to shut down all of its storefronts and some of its stores entirely and that it really had no choice but to lay off employees. .

As in the Coutinho case, the court of Taylor did not really answer the question of whether a unilateral layoff constitutes constructive dismissal, the law is well established that it does, we know the answer to that question. Instead, the question they were trying to answer is a bit more nuanced. Essentially, they were trying to understand whether the Ontario government took away an employee’s right to sue for constructive dismissal at common law when it amended the Employment Standards Act and created emergency leave for infectious diseases.

To quickly summarize this question, you may recall that a few months after the start of the pandemic, the government created emergency leave for infectious diseases. Now this was designed to protect employees who had to take time off work for reasons related to COVID-19, but these changes also indicated that any employee who had been terminated by their employer was retroactively deemed to be on emergency leave. for infectious diseases. This has allowed employers to avoid the maximum time limits for temporary layoffs under the Employment Standards Act, and also provided employees on leave with job protection. However, it also meant that employees who had been forced to take time off could not sue their employer under the Employment Standards Act. However, it was not clear whether this change also removed the possibility for an employee to sue his employer for constructive dismissal at common law.

In Coutinho, the court considered that the changes made to the Employment Standards Act clearly did not preclude an employee’s right to sue for constructive dismissal at common law. It specifically relied on Article 8 paragraph 1 of the ESA which expressly states that the civil rights of an employee are not affected by the provisions of the Employment Standards Act. He also pointed to the Department of Labor’s own guidance on this matter, which appeared to confirm that an employee’s common law rights were not affected by changes to the Employment Standards Act.

The court totally rejected this argument in Taylor, noting that this would create an absurd result when an employee could be on leave for the purposes of Employment Standards Act, but ended by constructive dismissal at common law. The court noted that the common law evolves as times change make it necessary. In this case, the legislature had created emergency infectious disease leave in response to extremely difficult circumstances, including some issues it had itself created, such as mandatory closings. Allowing employees to sue for constructive dismissal at common law would essentially nullify the protection that the legislature had expressly afforded to employers.

So now we have two completely contradictory decisions on exactly the same issue.

Where is this taking us? Unfortunately, that leaves us in limbo for the time being. We will probably have to wait for a higher court to rule on this issue before we have any certainty on this issue, and until then, it remains a complex debate with compelling motives on both sides.

On the one hand, it seems grossly unfair to penalize employers for taking advantage of the help the government has offered them in the form of emergency infectious disease leave. Many employers found themselves in a position where layoff was the only option available to them. If the Coutinho If the case is followed, employers may owe substantial damages to employees, which could result in financial ruin for many.

On the other hand, some employees have now been off work without pay for over a year and with no recourse available to them. Yes Taylor is being followed, many have struggled to find new jobs and frankly could experience financial instability as well.

[ad_2]

]]>
https://prosecutebushcheney.org/common-law-constructive-dismissal-prosecution/feed/ 0