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589 F2d 786 Beef Industry Antitrust Litigation Smith v. National Provisioner Inc

589 F.2d 786

1979-1 Trade Cases 62,448

Neal SMITH et al., Plaintiffs-Appellants,
The NATIONAL PROVISIONER, INC., et al., Defendants-Appellees.

No. 78-3344.

United States Court of Appeals,
Fifth Circuit.

Feb. 2, 1979.

Stanley M. Brand, General Counsel to the Clerk, U. S. House of Representatives, Washington, D. C., Steven R. Ross, Asst. Counsel to the Clerk, U. S. House of Representatives, Washington, D. C., John M. Fitzgibbons, Sp. Counsel, Committee of Small Business, U. S. House of Representatives, Washington, D. C., for plaintiffs-appellants.

Strasburger & Price, Wilson W. Herndon, Dallas, Tex., Kasmir, Willingham & Krage, Dallas, Tex., for defendant-appellee Liaison Counsel for Food Retailers in the District C.

Kirkland & Ellis, Daniel Edelman, Fred H. Bartlit, Jr., Jeffrey S. Davidson, Chicago, Ill., Newman, Shook & Newman, Lawrence G. Newman, Dallas, Tex., for The National Provisioner, Inc.

Edward W. Rothe, James T. Malysiak, Chicago, Ill., for Iowa Beef Processors, Inc.

John C. Dods, Kansas City, Mo., for MBPXL Corp.

Roger E. Podesta, New York City, for Flavorland Industry, Inc.

Edward C. Stringer, St. Paul, Minn., for Spencer Foods, Inc.

Appeal from the United States District Court for the Northern District of Texas.

Before THORNBERRY, FAY and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

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The chairmen of two subcommittees of the House of Representatives and the Clerk of the House1 seek to intervene in an antitrust suit pending in district court among private litigants in order to gain access to documents subpoenaed by the subcommittees from a party to the litigation. The documents were obtained by the subpoenaed party through discovery. Because the district court refused to modify its standing protective order or to allow the representatives of the party under subpoena to comply, the chairmen have appealed to this court. On a motion to dismiss, we must consider whether the action is properly before us.

There can be no doubt that the privilege of confidentiality, now embodied in Rule 26(c), Federal Rules of Civil Procedure, is a creation of Congress, just as are the rules relative to the procedure for obtaining subpoenas, E. g., F.R.C.P. 45, and for intervention in pending lawsuits, F.R.C.P. 24. See 28 U.S.C. § 2071. The issue before us does not relate to the power of Congress but to whether Congress has acted. Cf. United States v. Gustin-Bacon Division, Certain-Teed Products Corp., 10 Cir. 1970, 426 F.2d 539, 542, Cert. denied, 400 U.S. 832, 91 S.Ct. 63, 27 L.Ed.2d 63. It is respect for the duties and power of Congress, as set forth in Article I of the Constitution, that requires us to inquire whether Congress has authorized what these congressmen, as chairmen of their respective subcommittees, seek to do. Congressional committees are themselves the offspring of Congress; they have only those powers authorized by law; they do not have an unlimited roving commission merely by virtue of their creation and existence to ferret out evil or to uncover inequity. If Congress as a whole has created a privilege, then it is the duty of the court to protect it against violation even by a committee of that Congress. Such judicial action manifests respect for the law-making authority of the legislative branch of the government, not a lack of cooperation with its investigative efforts.

The appeal is related to a pending private antitrust suit, In re Beef Industry Antitrust Litigation, 457 F.Supp. 210 (N.D.Tex.). In October 1976, the district court issued an extensive protective order based on Rule 26(c), F.R.C.P. The order allows documents and deposition testimony to be designated as confidential, and provides in part:

Any information designated as confidential information shall not be made available to persons other than qualified persons or the party who produced the confidential information.

An exception is made if the court orders disclosure, or if the party designating the information as confidential consents to disclosure.

Two subcommittees of the House of Representatives, the Subcommittee on Oversight and Investigations of the Committee on Interstate and Foreign Commerce, and the Subcommittee on SBA and SBIC Authority and General Small Business Problems of the Committee on Small Business, learned of the existence of the antitrust suit in the course of investigating the domestic beef industry. Each of the subcommittees issued subpoenas to attorneys representing one of the plaintiffs, the Meat Price Investigators Association, and to an officer of the Association, demanding documentary material obtained by MPIA from other parties during the course of discovery in the antitrust suit. The validity of the subpoenas was not challenged; however, because some of the material requested by the subcommittees was subject to the district court's protective order, MPIA moved for the court's permission to comply with the congressional subpoenas. The court denied permission, but without prejudice to the right of the subcommittees to ask for relief on their own behalf. The chairmen of the two subcommittees did not seek to intervene in the suit; instead they sought leave to file a motion to grant MPIA's request, or for clarification or modification of the protective order. The court allowed the motion to be filed, but denied the relief requested. The two chairmen then appealed the trial court's denial of their motion. No party to the litigation joined in the appeal.

Before assessing the respective positions of the litigants, it is appropriate to consider the effect of the chairmen's failure to comply with the procedure for intervention established by Rule 24(c), F.R.C.P.2 Some courts have held that it is reversible error to conduct any proceedings at the behest of parties who have failed to intervene formally pursuant to Rule 24(c). E. g., Spangler v. Pasadena City Board of Education, 9 Cir. 1977,552 F.2d 1326. See also Moten v. Bricklayers, Masons and Plasterers International Union, 1976, 177 U.S.App.D.C. 77, 543 F.2d 224. Other courts have been willing to ignore technical defects in the intervention process. E. g., United States v. Louisiana, 5 Cir. 1976, 543 F.2d 1125; Smartt v. Coca-Cola Bottling Corp., 6 Cir. 1964, 337 F.2d 950, Cert. denied, 1965, 380 U.S. 934, 85 S.Ct. 941, 13 L.Ed.2d 822. Occasionally, courts have been willing to overlook a total failure to comply with Rule 24(c). E. g., SEC v. Lincoln Thrift Association, 9 Cir. 1978, 577 F.2d 600; Roach v. Churchman, 8 Cir. 1972, 457 F.2d 1101.

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The Fifth Circuit has been lenient in hearing the appeals of nonparties. In Overby v. United States Fidelity and Guaranty Co., 5 Cir. 1955, 224 F.2d 158, 162, we allowed the Acting Secretary of the Treasury, "whether or not he was formally recognized as a party to the suit," to appeal an order requiring the production of bank records in the bank's suit against its surety company because the Secretary had asserted that the records were privileged. A few years later, in Caswell v. Manhattan Fire & Marine Insurance Co., 5 Cir. 1968, 399 F.2d 417, we held that a nonparty could appeal the denial of his motion to quash a subpoena. Finally, in United States v. United Fruit Co., 5 Cir. 1969, 410 F.2d 553, Cert. denied, 396 U.S. 820, 90 S.Ct. 59, 24 L.Ed.2d 71, we allowed a nonparty to appeal the denial of its motion for permission to inspect and copy progress reports and programs sealed under a protective order. Although the panel considered whether it had jurisdiction over the case, it did not examine whether the nonparty had any right to file a motion with the district court, or to appeal without complying with Rule 24(c).

There is no question that the procedurally correct course for the chairmen would have been first to obtain status in the suits as intervenors. See SEC v. Lincoln Thrift Association, supra, 577 F.2d at 603. However, we note that the district court denied the plaintiffs' motion for leave to comply with the congressional subpoenas, "without prejudice to the right of the Committee and its counsel to appear before this court and ask for the relief that it seeks." This could be construed as an invitation to the chairmen to file their motion without first seeking formal intervention; indeed, the appellees use the words "permitted to intervene" when referring to the appellants' status in the motion to dismiss. See West v. Radio-Keith-Orpheum Corp., 2 Cir. 1934, 70 F.2d 621, 624, cited in SEC v. Lincoln Thrift Association, supra, 577 F.2d at 602 (creditors had standing because they were "brought in in invitum"). Compare United States v. United Fruit Co., supra, 410 F.2d at 554 ("The (protective) order provided that third parties could not, without an express order of the court inspect or copy any document submitted . . .."); Roach v. Churchman, supra, 457 F.2d at 1104 (affording relief to a participant without formally naming it as a party deemed "equivalent to authorizing" intervention). In view of our lenience in the past and the fact that the district court's acts might be considered equivalent to authorizing intervention, we will not dismiss for the failure to comply with Rule 24(c), but we will assume that the district court implicitly authorized the chairmen to intervene. However, we reiterate that a formal motion for intervention should have been filed pursuant to Rule 24(c). Future litigants should not attempt to use this opinion to circumvent the clear requirements of the rule. We now turn our attention to the issues raised by the litigants.

In response to the appeal filed by the chairmen, one of the defendants, The National Provisioner, Inc., filed a motion to dismiss because neither subcommittee had obtained authorization from the House of Representatives before it sought to file the motion in the district court; we note ourselves that neither has obtained authority to appeal. The premise of the motion to dismiss is that authorization is required by Rule XI, cl. 2(m)(2)(B) of the Rules of the House of Representatives for the 95th Congress, H.R.Doc.No.94-663, 94th Cong., 2d Sess. (1977), before a congressman may appear in court on behalf of a committee or subcommittee; that rule provides:

Compliance with any subpena (sic) issued by a committee or subcommittee . . . may be enforced only as authorized or directed by the House.

The position of the chairmen is that authorization under this rule is not required both because they seek modification of a court order rather than judicial enforcement of a congressional subpoena and also because they do not desire to retain outside counsel to represent their subcommittees in court. However, they point to no other rule and to no statute that confers general authority to prosecute or intervene in law suits or undertake other actions in the courts.

While the opinion of two congressmen on the applicability of a rule of the House is certainly entitled to serious consideration by this court, we note that legislative committees and congressmen have been held to observance of the rules of Congress and that those rules are judicially cognizable. Yellin v. United States, 1963, 374 U.S. 109, 114, 83 S.Ct. 1828, 1832, 10 L.Ed.2d 778, 783. See also Christoffel v. United States, 1949, 338 U.S. 84, 69 S.Ct. 1447, 93 L.Ed. 1826. In interpreting the meaning and scope of the House rule, it is appropriate to examine congressional practice under that rule. See Yellin v. United States, 374 U.S. at 116-17, 83 S.Ct. at 1833, 10 L.Ed.2d at 785.

One of the chairmen before us, Representative John E. Moss, has previously intervened on behalf of the Subcommittee on Oversight and Investigations in a then-pending case, Ashland Oil, Inc. v. FTC, D.D.C.1976, 409 F.Supp. 297, Aff'd, 179 U.S.App.D.C. 22, 548 F.2d 977 (per curiam). That case arose when Ashland Oil sought to enjoin the Federal Trade Commission from transferring secret information obtained from Ashland (apparently not in the course of litigation) to the Subcommittee on Oversight and Investigations of the Committee on Interstate and Foreign Commerce at the request of Subcommittee Chairman Moss. A week after Ashland Oil obtained a temporary restraining order, the subcommittee authorized a subpoena for the documents. Id. at 301. On the same day, Congressman Moss filed a resolution for authorization from the House to intervene with special counsel in the suit that Ashland Oil had filed seeking to enjoin the FTC from transferring the documents to the subcommittee.3 H.R.Res. 899, 94th Cong., 1st Sess. (1975). See 121 Cong.Rec. 38213.

The resolution passed by the House authorized Congressman Moss to "intervene and appear" in the pending action in district court on behalf of the committee. The report accompanying the resolution, H.R.Rep.No.94-756, explained why the resolution was necessary. It noted, "The Supreme Court has ruled that a committee (or subcommittee) must have specific authority from the appropriate House in order to undertake Any court action. Reed v. County Commissioners, 277 U.S. 376, 48 S.Ct. 531, 72 L.Ed. 924 (1928)."4 (Emphasis supplied.) H.R.Rep.No.94-756 at 22. The resolution was approved with unanimous consent. 121 Cong.Rec. 41707 (1975). After obtaining authorization, Congressman Moss sought and was granted leave to intervene in the suit pursuant to F.R.C.P. 24(a). 409 F.Supp. at 301.

In Ashland Oil, Congressman Moss was not seeking to obtain judicial enforcement of a congressional subpoena; he intervened to obtain the dissolution of the temporary restraining order that prevented the FTC from sending requested documents to his committee, and to oppose any temporary or permanent injunction that Ashland Oil might have sought to prevent the transfer of the documents for a longer period. Moreover, although special counsel was authorized in H.R.Res. 899, that was not the sole purpose of the resolution; it is clear that the resolution was submitted and passed because the Congressman himself stated that he needed such authorization. See, e. g., H.R.Rep.No.94-756 at 20-21. Neither the resolution nor the accompanying report provide any basis to support the view that under the House rules authorization is required only when special counsel is to be retained.

Thus based on the practice in the House of Representatives, as revealed by Congressman Moss's actions in the Ashland Oil case, it is apparent that Rule XI, cl. 2(m)(2)(B) requires House authorization not only for direct enforcement of a subpoena but also in any instance when a House committee seeks to institute or to intervene in litigation and, of course, to appeal from a court decision, particularly when the purpose is, as here, to obtain the effectuation of a subpoena. Congressmen Smith and Moss failed to obtain a House resolution or any other similar authority before they sought to intervene in the beef industry case. If every subcommittee of the Congress is to have inherent authority to intervene in pending suits, to file motions in litigation throughout the nation and to prosecute appeals from district court decisions, a general grant of authority by statute or resolution would appear appropriate. In the absence either of such a general authorization or specific authorization for the actions here taken, the motion to dismiss the appeal is granted.5

Congressman Neal Smith is the Chairman of the Subcommittee on SBA and SBIC Authority and General Small Business Problems of the Committee on Small Business. Congressman John E. Moss is Chairman of the Subcommittee on Oversight and Investigations of the Committee on Interstate and Foreign Commerce. Hon. Edmund L. Henshaw, Jr. is the Clerk of the House. His interest in the case is not apparent from the briefs. But see Rule III (3), Rules of the House of Representatives for the 95th Congress, H.R.Doc.No.94-663, 94th Cong., 2d Sess. (1977) (Clerk to affix the seal of the House to all subpoenas)

This issue was not discussed by the parties; however, we consider it of sufficient importance to raise sua sponte. See SEC v. Lincoln Thrift Association, 9 Cir. 1978, 577 F.2d 600, 602

Rule XI, cl. 2(m)(2)(B) of the Rules of the House of Representatives for the 94th Congress, H.R.Doc.No.93-416, 93d Cong., 2d Sess. (1975) is identical to the previously quoted rule of the 95th Congress

In Reed v. County Commissioners, 1928, 277 U.S. 376, 48 S.Ct. 531, 72 L.Ed. 924, the Supreme Court dismissed a suit brought to compel the production of documents because the members of the committee were not specifically authorized by the Senate to bring suit. Specific authorization has also been required in the context of prosecutions for contempt of Congress. Cf. Gojack v. United States, 1966, 384 U.S. 702, 716, 86 S.Ct. 1689, 1698, 16 L.Ed.2d 870, 880 ("the line of authority from the House to the Committee and then to the subcommittee must plainly and explicitly appear")

In view of our disposition of the case, we need not consider, sua sponte, the question of the mootness of the congressional subpoenas. Since the 95th Congress has adjourned, the subpoenas may no longer be in force. See Eastland v. United States Servicemen's Fund, 1975, 421 U.S. 491, 512, 95 S.Ct. 1813, 1826, 44 L.Ed.2d 324, 341. Neither need we consider the validity of the technical objection that, in filing the appeal, the chairmen appeared to act individually and not in their official capacities on behalf of their committees. For the purpose of this opinion, we have assumed, without deciding, that Congressmen Smith and Moss are acting on behalf of their respective committees


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720 F2d 1221 Zygadlo v. L Wainwright

720 F.2d 1221

Dale Albert ZYGADLO, Petitioner,
Louie L. WAINWRIGHT, Etc., Respondent.

No. 82-3087.

United States Court of Appeals,
Eleventh Circuit.

Dec. 2, 1983.

Howard W. Skinner, Asst. Federal Public Defender, Jacksonville, Fla., for petitioner.

Carolyn M. Snurkowski, Wallace E. Allbritton, Asst. Attys. Gen., Tallahassee, Fla., for respondent.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT and HILL, Circuit Judges, and SIMPSON, Senior Circuit Judge.

JAMES C. HILL, Circuit Judge:

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Dale Albert Zygadlo appeals to this court from the order of the district court denying his petition for a writ of habeas corpus. Zygadlo was tried and convicted of various offenses in the Circuit Court of Putnam County, Florida. As a security measure, the trial judge ordered Zygadlo to wear leg shackles at trial. Zygadlo contends that this security measure compromised his presumption of innocence and thereby denied him a fair trial in violation of the due process clause. We conclude that the trial judge properly exercised his discretion in ordering the security measures and affirm the order of the district court.

Zygadlo was charged with robbery, false imprisonment, use of a firearm in the commission of a felony, and grand larceny. He was tried on July 30, 1975. After the jury had been empaneled and sworn, but not in their presence, the trial judge ordered that Zygadlo's legs be shackled. Although Zygadlo was not forced to wear handcuffs, he wore a wide leather belt with a ring through which handcuffs could be passed if necessary to limit the movement of his arms.1

The judge supported his order by stating that he was "taking note of the fact that the Defendant has on at least one occasion while awaiting appearance before the Court escaped from the facilities which we have here." Record on Appeal at 15.2 The judge then allowed Zygadlo's lawyer the opportunity to object. He did so, stating:

Your honor, I would object to the shackles on the basis that it denies the Defendant a fair trial. I think it's long been recognized in our system of jurisprudence that a person coming into Court bound and chained, it makes it far more difficult for a jury to presume him innocent. And that's just--that's the objection I make on that point, Your Honor. I think it's denying him the right to a fair trial.

Id. at 16. The defense counsel renewed his objection at the close of the prosecution's evidence and in a motion for a new trial.3

Zygadlo again raised the issue on direct appeal from his conviction. See Zygadlo v. State, 341 So.2d 1053 (Fla.Dist.Ct.App.), cert. denied, 353 So.2d 681 (Fla.1977). The Florida appeals court noted that the record did not show that the jury observed the shackles and that Zygadlo could demonstrate no prejudice resulting from the trial judge's decision in light of the overwhelming evidence of his guilt. Id. The appeals court therefore affirmed the conviction on all counts except the charge of use of a firearm to commit robbery, which it vacated on other grounds. Id. On April 10, 1980, Zygadlo filed a petition in United States District Court for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1976). The district judge referred the case to a magistrate who recommended, after an evidentiary hearing, that Zygadlo's petition be denied. The district court adopted the report of the magistrate and entered its order denying the writ from which Zygadlo appeals.

Many considerations dictate that the use of shackles to restrain a defendant at trial should rarely be employed as a security device. Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970). The constitution grants every defendant a presumption of innocence, Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), and the physical presence of shackles clearly erodes the presumption. Kennedy v. Cardwell, 487 F.2d 101, 104 (6th Cir.1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974); United States v. Samuel, 431 F.2d 610, 614 (4th Cir.1970), cert. denied, 401 U.S. 946, 91 S.Ct. 964, 28 L.Ed.2d 229 (1971). The restraints may confuse the defendant, impair his ability to confer with counsel, and significantly affect the trial strategy he chooses to follow. Kennedy, 487 F.2d at 106; Hardin v. Estelle, 365 F.Supp. 39, 46 n. 11 (W.D.Tex.), aff'd on other grounds, 484 F.2d 944 (5th Cir.1973). The shackles also are "an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold." Illinois v. Allen, 397 U.S. at 344, 90 S.Ct. at 1061.

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Nevertheless, in some cases, shackles may properly be employed in order to ensure "the safe, reasonable and orderly progress of trial." United States v. Theriault, 531 F.2d 281 (5th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 262, 50 L.Ed.2d 182 (1976). Shackles may be necessary to prevent the defendant from disrupting the trial. They may also be necessary to prevent an escape and to protect the physical well-being of the jury, lawyers, judge, and other trial participants. Since the defendant's right to be tried free of restraints may be outweighed by these considerations, both the predecessor to this circuit and other circuits have granted the trial judge reasonable discretion to decide whether to shackle or otherwise restrain the defendant. See Harrell v. Israel, 672 F.2d 632, 636 (7th Cir.1982); Theriault, 531 F.2d at 284.

In this case, we cannot conclude that the trial judge abused his discretion as a matter of federal constitutional law. The judge had ample opportunity to observe the defendant at trial, and he knew of the defendant's previous escape attempt. In addition, he specifically entered the considerations supporting his decision into the record and allowed the defense counsel an opportunity to enter his objections out of the presence of the jury.4 Defense counsel stated only that the shackles denied the defendant a fair trial. As a matter of law, this is not true in every case, and in this case the facts support the trial judge's decision.5

If Zygadlo had been tried in federal court, United States v. Theriault, 531 F.2d 281, 285 (5th Cir.1976) would have required the district judge to enter a similar factual finding and allow counsel the opportunity to object. In addition, if the factual basis for the security procedures was in dispute, Theriault would mandate that the judge conduct an evidentiary hearing. Id. Although we are mindful that we review in this case the decision of a state trial judge in the context of a habeas corpus proceeding, we do not conclude that the due process clause would not have required an evidentiary hearing here had Zygadlo requested one. We note, however, that Zygadlo did not dispute the factual basis of the judge's decision or request such a hearing and that he suggested no alternative or less obtrusive means of restraint.6 Thus, the judgment of the district court is

In addition to the physical restraints, the judge ordered a plainclothes detective to sit close to Zygadlo at the counsel table. There were several other plainclothes and uniformed police in the courtroom

During one of the pretrial conferences, six weeks before the trial, Zygadlo was kept in a holding room in the courthouse. Zygadlo escaped from the third-floor room by jumping through a plexiglass window to the ground below and running away

Before ruling on the motion, the trial judge entered a written order setting forth several reasons for employing the security measures at trial, including the reason he stated orally at trial. Because Zygadlo had no opportunity to contest the validity of the additional factors before trial, we do not rely on them in reaching our decision

We note that other courts have approved the use of physical restraints at trial to prevent a possible escape even though the defendant has conducted himself properly at trial. See Harrell v. Israel, 672 F.2d 632 (7th Cir.1982); Loux v. United States, 389 F.2d 911 (9th Cir.), cert. denied, 393 U.S. 867, 89 S.Ct. 151, 21 L.Ed.2d 135 (1968)

This is not a case such as Woodards v. Cardwell, 430 F.2d 978 (6th Cir.1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971), in which the state judge made no findings in support of his order but simply deferred to the opinion of law enforcement officials

See, e.g., Harrell, 672 F.2d at 634 (precautions taken so jury would not focus on shackles)

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785 F2d 584 Christie v. Foremost Insurance Company

785 F.2d 584

40 Fair Empl.Prac.Cas. 508,
39 Empl. Prac. Dec. P 35,932
Richard C. CHRISTIE, Plaintiff-Appellee,

No. 85-1839.

United States Court of Appeals,
Seventh Circuit.

Argued Dec. 5, 1985.
Decided March 6, 1986.

Richard W. Morgan, Barnes & Thornburg, South Bend, Ind., for defendant-appellant.

John C. Hamilton, Parker, Brunner & Hamilton, South Bend, Ind., for plaintiff-appellee.

Before WOOD and COFFEY, Circuit Judges, and PELL, Senior Circuit Judge.*

HARLINGTON WOOD, Jr., Circuit Judge.

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A jury found that Foremost Insurance Company ("Foremost") engaged in illegal age discrimination when it fired the plaintiff, Richard Christie, and replaced him with a younger, less experienced employee. Foremost concedes that Christie established a prima facie case of age discrimination, but argues that Christie failed to present sufficient evidence that Foremost's proffered nondiscriminatory explanation was merely a pretext. Foremost appeals the district court's denial of Foremost's motion for judgment notwithstanding the verdict, or in the alternative for a new trial. We affirm.

Foremost Insurance Company specializes in selling insurance for mobile homes and recreational vehicles. In late 1975 or early 1976, Foremost hired Richard Christie, who was then forty-five years old, to be Foremost's district manager in the southeastern district of Michigan. Christie regularly received "excellent" ratings from his supervisors at Foremost and Foremost never questioned his competence.

On November 4, 1980, Christie's division manager Paul Forsthoefel telephoned Christie to set up a meeting for November 5. At that meeting, Forsthoefel informed Christie he was "terminated," and handed Christie a letter explaining that Foremost found it "necessary to implement a reduction in our field sales staff in Michigan." The letter, dated November 4, informed Christie he was terminated as of November 7, 1980. In Foremost's final status report on Christie, dated November 7, 1980, Christie was again rated "excellent." Christie, who was forty-nine when fired, was replaced by Danny Starnes, who was thirty-two years old and had begun working for Foremost in January, 1979.

In LaMontagne v. American Convenience Products, Inc., 750 F.2d 1405 (7th Cir.1984), Judge Eschbach carefully set out the law governing claims of age discrimination, see Age Discrimination in Employment Act, 29 U.S.C. Sec. 623(a) ("ADEA"), based upon an employer's decision to terminate an employee. 750 F.2d at 1409-10. It is therefore unnecessary for us to review the law in great detail. Foremost concedes that Christie made out a prima facie case, which created a rebuttable presumption of age discrimination. See id. at 1409. Foremost contends, however, that it met its burden of production by articulating a lawful reason for Christie's discharge, and Christie failed to meet his burden of proving that Foremost's proffered reasons were merely a pretext. See id. Foremost claims, therefore, that the trial court erred by refusing to grant Foremost's motion for a judgment notwithstanding the verdict.

In reviewing a district court's decision whether to grant a judgment n.o.v., we examine whether there is substantial evidence to support the jury verdict. We determine whether the evidence presented, combined with all reasonable inferences that may be drawn from it, is sufficient to support the verdict when viewed in the light most favorable to the party winning the verdict. Id. at 1410.

Foremost offered a nondiscriminatory reason to legitimize its decision to fire Christie. Foremost said that Christie's termination occurred as part of a legitimate reduction in force. Foremost further claims it terminated Christie and replaced him with Starnes because Foremost's supervisors concluded that Starnes would perform better in an economic recession. Foremost contends that Christie failed to prove that the reduction in force was a pretext for firing Christie. Foremost claims that "Christie's age discrimination case rested on nothing more than his beliefs and feelings and other evidence which, as a matter of law, does not create an inference of age discrimination."

Foremost claims that, in order to prove pretext, a plaintiff like Christie must present evidence of either (1) age-related comments, (2) statistics of disparate effect on employees aged 40-70, (3) more favorable treatment of similarly situated employees under 40, or (4) the falseness of the employer's reasons for termination. Foremost contends that Christie presented no evidence of the first three, and failed to establish the fourth. Christie contends that he proved Foremost's proffered reasons were "unworthy of credence." See id. at 1409; Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981).

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Foremost acknowledges that we apply a stringent standard in reviewing a jury's verdict. Employment discrimination cases in particular often involve "sensitive and difficult" issues of fact. See U.S. Postal Service v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). Plaintiffs often have great difficulty in gathering information and can present only circumstantial evidence of discriminatory motives. See Cuddy v. Carmen, 694 F.2d 853, 859 (D.C.Cir.1982). The credibility of witnesses is often crucial. On review of a motion for judgment n.o.v., we draw all reasonable inferences and resolve all conflicts in the evidence in Christie's favor. LaMontagne, 750 F.2d at 1410. Using this standard, we find that Christie presented substantial evidence that Foremost's proffered explanations were merely a pretext for age discrimination.

First of all, Christie presented evidence of his consistent excellent ratings from his supervisors. He also presented evidence that the evaluations which allegedly showed Starnes was a superior employee were suspect. Unlike Christie's evaluations which were based primarily upon achieving objective goals, Starnes' evaluation was wholly subjective. Furthermore, Christie presented evidence suggesting that Foremost ignored much relevant data. Finally, Christie showed that many of the items on which Starnes was evaluated were "soft"--such as completing most of the company's twenty-three instruction manuals and obtaining a necessary insurance license. Starnes' evaluation rested entirely upon Forsthoefel's personal opinion, and Forsthoefel's credibility was very much at issue in this case because he was the Foremost manager who initiated the decision to fire Christie.

Foremost argues that Christie's prior excellent ratings were insufficient as a matter of law to prove pretext, citing LaMontagne. In LaMontagne, the court merely said that the defendant "advanced specific reasons for [the plaintiff's] discharge, and [the plaintiff's] rebuttal evidence should be focused on them." 750 F.2d at 1414. In LaMontagne, the defendant claimed that it fired the plaintiff because of persistent communication problems. Unlike LaMontagne, in this case Foremost claimed that Starnes was a better person for the job. Therefore, Christie's evidence of excellent work was responsive to Foremost's proffered reason for the discharge.

Christie also presented evidence from which the jury could have found that Foremost did not comply with its own reduction in force policy and thus was probably not making a legitimate reduction in force. One of the Foremost managers who decided to terminate Christie, Ronald Crippin, did not even know that Foremost had a policy governing reductions in force. A jury could infer from this fact that Foremost was not actually making a reduction in force, because if it was its managers would have known of or located the company policy and followed it. Christie also presented evidence from which the jury could have inferred that had Foremost actually followed its own reduction in force policy, Christie would not have been discharged.

Christie presented other evidence which, with the evidence discussed above, was substantial enough to persuade the jury that Foremost's proffered reasons either had "no basis in fact, or, if they [had] a basis in fact, ... were not really factors motivating the discharge." 750 F.2d at 1414-15. Christie's proof that Foremost's explanation was unworthy of credence is sufficient to affirm the district court's decision to deny Foremost's motion for judgment n.o.v. Id. at 1409.

One final argument by Foremost deserves special mention, however. Foremost alleges that rather than producing evidence of pretext, Christie merely invited the jury to second-guess Foremost's business judgment. Foremost is correct that a plaintiff cannot argue that the defendant made a bad business decision in choosing between two employees to discharge. For example, in this case Christie could not prevail by arguing that Foremost used poor judgment in replacing him with Starnes.

Christie's argument was different, however. He argued not that Foremost used the wrong criteria and bad judgment in terminating him as part of a reduction in force, but rather that Foremost never made a decision about who to terminate as part of a reduction in force. Christie argued that Foremost merely used the reduction-in-force rationale as a pretext to cover age discrimination. A plaintiff cannot argue that the defendant showed bad judgment in deciding another employee had greater potential, but he can argue that the method used by the defendant showed that the defendant was not really trying to decide which employee had greater potential. Granted this is a fine line, but the law often places such a burden on the jury. Foremost does not contend that at any time during trial the court allowed Christie to invite the jury to second-guess Foremost's business judgment. Neither does Foremost allege that the jury instructions impermissibly invited the jury to second-guess Foremost's business judgment. Therefore, we conclude that Foremost's statement of the law is accurate, but inapplicable to this case.

Richard Christie presented sufficient evidence to support the jury's finding that Foremost engaged in illegal age discrimination when it fired Christie. In particular, Christie presented sufficient evidence that Foremost's proffered explanation was unworthy of credence and thus merely a pretext for discrimination. The district court's denial of Foremost's motion for a judgment n.o.v. is thus

Judge Pell was a member of the original panel and agreed with the result reached in this case, but did not participate after December 31, 1985


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Beatty is an unincorporated community in Klamath County, Oregon, United States. Beatty is located on Oregon Route 140 at the confluence of the Sycan and Sprague Rivers and is 30 miles east of Klamath Falls. Beatty was named for J .L. Beatty, a missionary who lived nearby when the area was in the Klamath Indian Reservation. The post office in Beatty, ZIP Code 97621, was established in 1913. Toby "Winema" Riddle is buried near Beatty.

Entertainment And Sports Law Lawyers In Beatty Oregon

What is entertainment and sports law?

Entertainment and sports law encompasses multiple areas of law which work together to serve the entertainment and sports industries. Attorneys who practice entertainment and sports law represent clients in the fields of motion pictures, television, theater, music, media, visual arts, literature, and professional sports. Entertainment and sports law lawyers handle matters like contract negotiation, agent representation, product endorsement deals, and litigation on behalf of their clients.


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Improper Tax being applied on UI of ORPOS 13.0.1

Hi All,
I have defined a Tax rate and Tax Jurisdiction appropriate Geocodes through RMS 13.0.0 it generates a TaxImport.xml when i Import it on ORPOS 13.0.1 the tax rate which i have defined is not reflected on Orpos UI either it applies default tax rate 8.26% defined in Central office.
I manipulated the tax xml file thinking few tags missing since i have an generated xml file provided by my client after import, it has over-ridden 8.26% to 0.00 and when i lookup in Database few tables are not getting populated with data which is suppose to happen after the Import.
Hope i will find a solution soon
Thanks & Regards
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john quoc replied Mar 19, 2009
I'm trying to run the import utility too. How do you invoke the import function for the generated xml?
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Nissan – OSU Admissions Blog The blog of Oregon State University's Office of Admissions Fri, 19 Feb 2016 17:08:42 +0000 en-US hourly 1 OSU Hopes to Partner with Nissan for Electric, Hybrid Cars Tue, 13 Jan 2009 16:52:10 +0000 We all know Oregon State University has been a statewide leader in going green (the environmental movement, not the school colors, folks). The Orange and Black has furthered it’s leadership in the movement as it becomes “poised to take a larger role in emerging electric car technology at a time when Nissan North America has announced a major zero-emission vehicle partnership with the state of Oregon.” You can read the complete article from the Oregon Natural Resource Report here.

Check out this youtube clip of Justin Fleming, manager of the universityâ€™s motor pool, discussing electric cars:

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CORVALLIS - An Oregon State University doctoral candidate in public health has earned a Fulbright grant to conduct water quality research in rural Nepal during the 2001-02 academic year.

Rochelle Rainey's project is "Solar Disinfection of Drinking Water in Rural Nepalese Households." This will be Rainey's second long-term visit to Nepal. From 1988-90, she worked as a Peace Corps volunteer in Nepal and gained language skills. Her experience alerted her to the health needs related to water quality and sanitation and stirred an interest in environmental health, she said.

Rainey's study will test the use of solar energy in eliminating microbial contamination of drinking water at the point of use in households in rural Nepal during both the dry season and the summer monsoon season.

The study also will investigate the relationship between use of solar disinfection, general household sanitation, and the health status of the household members. Finally, Rainey will collect information on the local understanding of links between water quality, sanitation, and health and assess the sustainability of use of solar disinfection in the region.

"Rochelle Rainey is intellectually gifted and has an extraordinary set of skills and academic and work experience that are unique to international work," said Anna Harding, chair of OSU's Department of Public Health. "She is an outstanding graduate student with unlimited potential to be a leader in the public health community."

"For someone who plans to represent the United States in Nepal, few are more suitable than Ms. Rainey," said Chunhuei Chi, one of Rainey's professors in the department. "She has a very good understanding of the culture and society of Nepal."

Rainey will leave for Nepal in September. While in Nepal, she will be working with Nepal's Drinking Water and Sanitation Services as well as several non-governmental organizations. Rainey holds a master's degree in environmental health, which she completed after her Peace Corps experience.

While working on her master's degree, Rainey also worked full-time at OSU's Office of International Research and Development coordinating a natural resources research project in Senegal.

U.S. Sen. J. William Fulbright of Arkansas proposed the Fulbright Program in international educational exchange to Congress in 1945. The Department of State, Bureau of Educational and Cultural Affairs sponsor the Fulbright Program. Financial support is provided by annual appropriations from and by participating governments and by host institutions in the United States and abroad.


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Dismissal Is the Only Option in Bradley Manning Case

by , March 21, 2012

Last week I spent two days in court for a pretrial motions hearing in the court martial of Bradley Manning, the private accused of leaking documents to WikiLeaks that showed widespread unethical and illegal behavior by the Department of Defense and State Department. Manning has suffered the fate the Queen put on Alice when she was in Wonderland: “Sentence first — verdict afterwards.” By the time his court martial is actually held he will have been incarcerated for more than two years; one of those years was spent in solitary confinement. But that is only one of many obvious injustices Manning is being subjected to.

In fact, just before the pretrial motions were heard, U.N. Special Rapporteur on Torture Juan Mendez completed a 14-month investigation and published a lengthy report on torture and otherwise abusive punishment. He wrote: “The special rapporteur concludes that imposing seriously punitive conditions of detention on someone who has not been found guilty of any crime is a violation of his right to physical and psychological integrity as well as of his presumption of innocence.”

Further, Mendez concluded that the U.S. military was at least culpable of cruel and inhumane treatment in keeping Manning locked up alone for 23 hours a day over an 11-month period in conditions that he also found might have constituted torture.

The motions hearing had some Twilight Zone moments. The prosecutors were missing court orders and rulings as well as motions and documents filed by the defense until March 11 because, in the strange world of the “land of the free,” when the word “WikiLeaks” appeared in an email, the document was blocked. The government finally figured out that they were missing filings, so now every day the prosecutors check their spam box at 10 a.m. to see what the censors have hidden. Unlike other federal employees in the land of constitutionally protected free speech, they read the word “WikiLeaks.” What will be the impact!?

Taking a lesson from the Queen in Alice in Wonderland, America’s top two military commanders have already pronounced Manning guilty. Almost a year ago, President Obama, the commander in chief, pronounced Manning guilty, saying, “He broke the law.” Recently, the chairman of the Joint Chiefs of Staff, General Martin Dempsey, echoed that finding of guilt before trial, saying, “He did break the law.” Dempsey’s comment was published in Stars and Stripes, the official newspaper of the Department of Defense. It seems like the military is doing all it can to let everyone who serves on the jury know his or her career is over if Manning is found not guilty.

This openly violates Article 37 of the Uniform Code of Military Justice, which forbids “Unlawfully Influencing Action of Court.” This is a heavily litigated area because the command structure of the military makes higher-ranking officers very powerful over their subordinates. In 2004, the United States Court of Appeals for the Armed Services issued a unanimous decision that affirmed the power of the military judge to dismiss charges and specifications with prejudice in the face of unlawful command influence, United States v. Gore, 60 M.J. 178.

Manning’s attorney, David Coombs, raised the issue of unlawful command influence in the Article 32 hearing, when he sought testimony from President Obama and other high government officials, writing: “The relevancy of these witnesses should be obvious. Each of these witnesses has provided statements that contradict those given by the OCA [Original Classification Authority] witnesses regarding the alleged damage caused by the unauthorized disclosures. Additionally, each of these witnesses is relevant in order to inquire into the issues of unlawful command influence and unlawful pretrial punishment in violation of Articles 13 and 37 of the UCMJ.” (Emphasis added.)

It is unclear how Judge Col. Denise Lind will minimize the impact of command influence in the Manning case. She can tell the jurors to ignore the statements by the commander in chief and the chairman of the Joint Chiefs that Manning “broke the law,” but will that just make matters worse?

But this is not the end of the mess the government has created, making a fair trial seemingly impossible. Coombs pushed the government hard on its denial of discovery. The government said there were 3 million pages of documents related to the trial. Coombs has gotten a very tiny fraction of those. The argument in court over discovery was about disclosure of materials related to the Apache helicopter attack known as the “Collateral Murder” video, the damage- assessment reports done by five federal agencies on how the documents impacted national security, computer forensic images that could show what software was installed or downloaded, and video from the Quantico Marine Brig, where Manning was held in solitary.

The damage assessments are particularly important to both the underlying offenses as well as sentencing. Regarding the underlying charge, Manning’s most serious charge is aiding the enemy, which the government disclosed in court was al-Qaeda of the Arabian Peninsula. The damage assessments would surely describe whether and how al- Qaeda was aided by the released documents.

Since October 2010 Coombs has been asking for the damage assessments. The State and Justice Departments claim not to have finalized their assessment. (Will they ever? Will they before the Manning trial?) The Defense Intelligence Agency and the Central Intelligence Agency have completed their assessments, but they are classified. The Federal Bureau of Investigation has completed its assessment but has not made it available. Coombs pointed out that leaks and statements by top officials such as Secretary Clinton and former Secretary Gates indicate there was no significant damage from the release.

The government says that if it is ordered to produce the materials,it  will have to go to the original classification authority to review them and that this could take up to 60 days to complete. Coombs was surprised that this had not already been done. And the government claimed that any documents ordered released would be reviewed for relevancy, and it could be that one paragraph is relevant out of a 100-page document, the remainder of which will be redacted. It is evident that discovery will be an ongoing battle, since the prosecution seems intent on hiding information from the defense. When I practiced law and the government opened its files and showed everything, I realized there was not much evidence on my side, but when the government hid documents it almost always would mean they had something that could lose their case.

After arguing the discovery motion for an hour, where he repeatedly criticized the government lawyers for not understanding their responsibilities under the discovery rules, Coombs heightened the argument by filing a motion to dismiss because of the government’s failure to provide discovery. He argued that he did not know how this could be fixed. He compared it to baking a cake and 45 minutes into the baking realizing you forgot to put in the eggs.

Coombs also sought a bill of particulars, seeking more specificity regarding the facts the government intends to prove. Coombs specifically wanted to know whether the prosecution alleged that Manning had hacked into the SIPRnet, or stolen a password, or simply used the access he already had. Judge Lind interjected herself, asking an Alice in Wonderland-Queen like question: “Does the government have to prove how he did it?” Coombs responded that this type of specificity is what the bill of particulars was designed for, explaining, “I don’t want a trial by ambush.”

It is not only the defense that is not being given information; the media and public are also being kept in the dark. The government is even hiding court filings from the media. The Reporters Committee for Freedom of the Press sent a letter signed by 46 media outlets urging the military to adopt at least the same level of media access as extended to trials at Guantanamo Bay. Amazingly, those terrorist trials provide more information to the media than the trial of Pvt. Bradley Manning.

From pretrial abuse through prosecutors not living up to discovery obligations and commanders declaring Manning guilty, it seems the government is trying to send a message: blow the whistle on war crimes and we will incarcerate and torture you, prosecute you in a kangaroo court, and put you away for life. It is almost a “we can do anything we want to you” message to troops that if they let the truth be known, they will be severely punished regardless of the law.

The case is once again reminiscent of the prosecution of Daniel Ellsberg, who leaked the Pentagon Papers and faced up to 115 years’ incarceration. During the trial it came out that the White House had broken into Ellsberg’s psychiatrist’s office and the judge ordered those documents released to the defense. John Ehrlichman twice met with the judge during the trial and offered him the directorship of the FBI. The FBI also taped numerous conversations involving Ellsberg and did not disclose this in discovery. After a four-month trial, just as the case was going to a jury, the judge dismissed all charges after the government claimed it had lost records of wiretapping against Ellsberg. Judge Byrne dismissed the case, ruling: “The totality of the circumstances . . . offend a sense of justice. The bizarre events have incurably infected the prosecution of this case.”

The bizarre and unfair behavior of the government in the prosecution of Bradley Manning likewise offends a sense of justice and has incurably infected the possibility of a fair trial and a just result. Short of outright dismissal, it is hard to see how justice can be done.

Read more by Kevin Zeese


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The Phantom Menace

by , October 12, 2007

Dozens of neo-Nazis were arrested in the northern Serbian city of Novi Sad on Sunday, as they rallied despite a government ban and clashed with a crowd of protesters. Western media hurried to make hay of the incident; the New York Times appended the two-paragraph report to the end of a story about the resurgent KLA, while the Associated Press could not resist the temptation to mention that Novi Sad was run by "a right-wing mayor with nationalist policies" and point out that the neo-Nazis marched against the secession of Kosovo.

Malicious reporting about Serbia is nothing new. However, the mayor of Novi Sad, Maja Gojkovic of the Serbian Radical Party, ought to sue the AP for libel. She was the one to ban the neo-Nazi demonstration in the first place, and the Radical Party has no connection to the group whatsoever. Nor is opposing the separation of Kosovo a Nazi-like sentiment – especially given that the Albanian separatists have a rich Nazi heritage themselves.

At issue as well was how many of these "neo-Nazis" were actually Serbian. Among the 56 people arrested in Novi Sad were eleven Slovak nationals, while eight Bulgarians were arrested in Belgrade. But to the Western mainstream, "Serb Nazis protest Kosovo freedom" is too good a cliché to pass up.

The truth, as usual, is far more complicated. There are racists and neo-Nazis in Serbia, but they are on the far outer margin of society. Their behavior is more Hollywood than Nuremberg: last year, several men at a soccer game in Cacak wore KKK hoods and waved Confederate flags while shouting insults at a black player – who was from Zimbabwe.

Serbian "Nazis" model their appearance, rhetoric and behavior on American skinheads of Stormfront and American History X, not the genuine article. Like "liberal democracy" (which is neither liberal nor democratic), these phenomena are Western imports, sound and fury devoid of substance in a society fighting for its identity after four decades of Communist repression and almost two decades of conflict.

Fitting The Narrative

None of this, however, fits the "narrative" embraced by the mainstream media, in which multi-culturalism is sacrosanct and traditional identities of any kind are evil. On Monday, the Washington Post carried a short AP report on the "Nazis" in Serbia, but featured a long story about "racism" in Switzerland, of all places. The placid Alpine republic has enjoyed centuries of prosperity thanks to its geography, a policy of neutrality, and a tradition-based, decentralized political system that allowed for peaceful coexistence of four linguistic groups. Now, however, 20% of Switzerland’s residents are foreign-born, and Swiss identity is very much in question.

The Post defines the terms of the current Swiss debate thus: "to embrace an increasingly globalized, multicultural society or to retreat into social isolation in an effort to preserve eroding traditional identities."

Note the choice of words: either "embrace globalization" or "retreat into isolation"! Loaded language like this has been the butter of propaganda bread for years. The Post‘s reporter chooses to frame the article by a story of an immigrant from Angola, who was victim of a brutal chainsaw attack this May. The sympathy this man’s plight rightly elicits is then used to derail any rational discussion of the Swiss People’s Party and its policies, which are branded "racist."

Professional anti-racists get a lot of space in the Post article. But even the government Commission Against Racism acknowledges that "most people denied citizenship were Muslims and natives of the Balkans who were granted asylum during the ethnic wars of the 1990s."

Trouble is, both Bosnian Muslims and Kosovo Albanians are as white as Germans, Italians or Frenchmen. It appears "racism" – just like "genocide" – has a very flexible definition…

Family-Friendly Nazis

For example, Croatian pop singer Marko Perkovic "Thompson" held a concert at the Zagreb soccer stadium in June this year. His "patriotic" lyrics sing praises to the Ustasha – Croatian Nazis responsible for the mass murder of Serbs and Jews during WW2 – and his fans dress up in Ustasha uniforms and offer Nazi salutes.

Even though the Jewish community denounced the concert, Croatian public and the government saw nothing wrong with it. One former diplomat even showed up with his family in tow.

"Thompson" has recently announced a North American tour.

Fuehrers Of All Kinds

The recent events in Novi Sad, however, weren’t just about a bunch of wannabe-Nazis aping Hollywood stereotypes to the great joy of Western media. Most of the media and political ruckus has actually been raised by the self-styled "social-democrats" and "liberals."

Djordje Vukadinovic, columnist of the daily Politika and editor of the journal New Serbian Political Thought (NSPM), examined the motives behind the vocal opposition to "fascism" by Nenad Canak, a controversial regional politician, and his supporters among the "liberal democrats." The key characteristic Canak shares with the neo-Nazi leader Goran Davidovic is "the disregard of democratic institutions and procedures, and the related reliance on verbal and physical violence as the means of political struggle."

Vukadinovic is convinced "there are no actual fascists in Serbia, but Davidovic and Canak come close – the former preferring the German variety, while the latter is more akin to Mussolini."

Slobodan Antonic, Vukadinovic’s fellow editor and columnist, goes even further:

"If you want to be a great anti-fascist, you need a great fascist enemy. No one gives money or votes for a campaign against a score of bizarre and socially marginal misfits. But if you paint that organization as the striking fist of a mass movement… here come the votes of the scared and the confused, and a new grant for your NGO.

"The ‘Serbian fascism’ is like the emperor’s clothes. If you don’t see it everywhere and in everything, you are ridiculed. What can be seen is a pathetic attempt of a marginal group at self-promotion. But what one is expected to see – so as not to be branded stupid or evil – is ‘Serb fascism’"

Antonic points out that Communists and Nazis in Weimar Germany both employed thugs to break up each others’ rallies, and compared that to the rhetoric and the behavior in Serbia today.

Antonic didn’t say it this time, because it is a well-known fact, that those who style themselves most vocally as "anti-fascists" today are political heirs of the old Communists, ousted by Milosevic 20 years ago. While Cedomir Jovanovic is their face, Latinka Perovic – a 1970s party boss– is their guru. If "National Rank" – the incongruously named neo-Nazi organization headed by Davidovic – did not exist, the "liberals" would have invented them.

Sith Politics

In loudly professing their "anti-fascism," Serbia’s "liberal democrats" seem to have taken their cue from George Lucas’s Star Wars prequels. For years, they have sought something against which they could define themselves as champions – but their attacks on the Orthodox church, the army, the Academy of Arts and Sciences, the intelligence agencies, and even the governing political parties have produced underwhelming results. It appears that in the "National Rank" they have finally found their "phantom menace."

Read more by Nebojsa Malic


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Tuesday, July 03, 2007

Yes, I do have some thoughts on the commutation of Lewis "Scooter" Libby's sentence!

I get annoyed once in a while, but it is rare for me to get really mad, in-a-rage mad, but that's what happened on January 20, 2001. That's the day that President Bill Clinton pardoned a very wealthy man in Switzerland named Marc Rich.

Rich was a groundbreaking financier, particularly in the area of commodity trading. He also developed a business relationship with Ayatollah Khomeini of Iran, and used those contacts to buy crude oil from Iran during an embargo. In 1983 the U.S. Attorney for the Southern District of New York, Rudolph Giuliani (yes, that one) indicted Rich for tax evasion and illegal trading with the enemy. Rich didn't stick around-- he fled to Switzerland rather than appear on the charges. For 15 years Marc Rich was represented by Lewis "Scooter" Libby (yes, that one) in trying to get rid of the arrest warrant. During this time, Rich's wife donated money to both the Democratic Party and the Clinton library.

Clinton pardoned Rich hours before leaving office, and it was one of the most cowardly and unprincipled things a president has done. Why did it make me mad, though? Why take that personally? Because I had spent years in federal court as a prosecutor under Clinton, arguing that justice should apply equally, and fending off arguments for leniency on the grounds of uniform punishment. On January 20, 2001, that all seemed like a sham.

And now we come around again to the same kind of hypocrisy. President Bush commuted the imprisonment portion of Libby's sentence rather than pardon him, but that may only heighten the hypocrisy this time. You see, just two weeks ago the Supreme Court ruled for Bush's DOJ in the case of Rita v. United States, holding that a properly calculated guideline range is presumtively reasonable. Rita and Libby were both sentenced within the guideline range, both were convicted of lying to a grand jury, and both had significant public service (Rita was a Marine for 24 years).

In the Rita case, Bush's government argued that the sentencing guidelines are rational, and that viewing them as presumptively reasonable meant that people committing similar crimes would be treated the same way regardless of race and class. That's a pretty good statement of principle (though it is tension with the Christian principle of mercy). The Libby commutation, which undoes adherence to the Guidelines rather than the conviction, is an afront to that very principle. To simultaneously stick it to a veteran like Rita while letting off a fat cat like Libby or Rich undermines the principle that from the beginning has animated our sense of justice when we are at our best: "We hold these truths to be self-evident; that all men are created equal...."

Tomorrow I will not be at a parade or a picnic or the beach. I'm going to be in my office, wearing my thinking hat and pacing around and knocking down words that tie together a challenge to all this. With the help of my amigos Michael O'Hear of Marquette Law School, Dustin Benham of Carrington Coleman, and Matt Acosta of, uh, the student lounge at BLS, I'm writing a U.S. Supreme Court brief for the National Association of Federal Defenders in the case of Kimbrough v. United States. The point is simple: A sentencing judge should be able to vary from the guidelines if she thinks they are too harsh in a given case, even if the defendant isn't very, very rich.

There are a lot of colors of patriotism, and right now I'm seeing red.

Wow! I like that team-- two Yalies and two Baylories... theory and practice come together. I'll bet that combo has never produced a brief before.

Don't worry, good sir. We ourselves received a gubentorial pardon from Bush after a conviction of some National Guard document destruction threatened an intern of ours with jail time.

A timely letter to the then-Gov had its intended result: a pardon of our intern and a some favorable regulation dismantling for our vast oil stock portfolio. We're sure that he would assist anyone so imperiled by the justice system.

Bringing honor and integrity back to that Ol White House.

Red, but not with anger
Rudy Giuliani or Vampire Ghouliani?
Apparently Matt retroactively failed some classes and has been relegated back to 2L. Sorry, dude.
Uh, Poseur-- doesn't "second-year student" mean the same as "2L?" Or did you guys all promote yourselves already???
I have a couple of thoughts:

1. It seems to me you have a problem with hypocrisy and not a problem with the actual actions of President Bush. At the end of your post, you say, "A sentencing judge should be able to vary from the guidelines if she thinks they are too harsh in a given case, even if the defendant isn't very, very rich." I would assume that you also think the sentencing judge should be able to vary from the guidelines if he/she thinks they are too harsh even if the defendant is rich (which Libby isn't by the way, the court case has drained him of much of his financial resources, though I'm sure he'll bounce back when the book deal comes through). So, Bush thought the sentence was too harsh, which seems like a completely reasonable point (Christopher Hitchens article on this issue can be found here http://www.slate.com/id/2168642/ - I only cite him because I always think he is fairly reasonable). Even though his sentence was within the applicable guidelines (even though it appears to be on the high side of those guidelines) wouldn't you agree that lessening that punishment if it seems too harsh is the fair thing to do.

2. If the issue is hypocrisy, I always find that debate troubling. As Jonah Goldberg once said, "In a town where looking for hypocrisy is easier than looking for sand on a beach, I am consistently amazed how everyone is willing to accept that hypocrisy is always wrong, even though what we admire most in our politicians is hypocrisy. It's just that when we like the hypocrisy, we call it courage." I know I'm going to take a hit by citing him, but examine the larger point. If Bush came out today and said he was ending the war because we shouldn't force democracy on everyone then some would call him courageous, or say he was doing the right thing. In other words, it is only hypocrisy when it is something you disagree with, and hypocrisy is only wrong when it is something you disagree with as well.

3. In her order, the judge said: "It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse." -- this troubles me, because it seems that she is punishing him almost because he is wealthy, or at least not stricken with poverty. I agree with you that we should not seek to more harshly punish those who are the weakest in our society, but we shouldn't seek to punish the wealthy unequally either, right?

4. I agree with your conclusion, and I think the commuting of the sentence was silly, but not surprising. Just sparking a little argument for fun on a Tuesday.

5. I'm going to spend my 4th with Bud Light and listening to Lee Greenwood...God Bless the U.S.A.!!!

The thing is, right now mercy is largely reserved for those like Libby-- it's not doled out equally. As for your example of hypocrisy being applauded, Bush ending the war, that would seem like him changing his mind in the light of new facts. I don't call that hypocrisy. The reason I see this as so blatant is because the Rita case and Libby's case were simultaneous. Timing matters.
It's politics folks, pure and simple, and something I think the founders realized was possible given the inclusion of the President's power to pardon in the Constitution (Art. 2, Sec. 2). And that, dear friends, is the beginning and end of my constitutional prowess.

Having power isn't the same as using that power in a principled way. If simply having the power to do something makes it ok to act on that power, any evil can be defended.

Per your request . . .

As that neutral observer Jonah Goldberg stated (when defending a particular party's actions) . . " "

You had me at Goldberg.
Would it be wrong to guzzle some Gomez tequila listening to some old Selena cassettes to celebrate the 4th?

Mi madre celebrates the 4th by making an Uncle Sam pinata . . .
I am not troubled by the Libby commutation simply because the law is less likely to be fairly applied when your friend is the President of the United States. That is the prerogative of power.

Politics and politicians have never been "fair" and it is naive to think that they ever will be. They never end up leaving office poorer than when they started, nor more ethical, nor closer to their constituency, nor more idealistic. Winston Churchill said that "history would be kind to me because I will write it." To the victor always go the spoils. (And, to add adage to adage...It ain't what you know, it's who you know.)

The saving grace of the sentencing guidelines you produce, and the body of law that indwell the courts is that the law is more ultimately more fair and reasonable for all of us who don't sit at the seat of power. Forget about trying to make sense of how unevenly it is applied, especially when it sits at the juxtaposition of politics and the "rightness' or "wrongness" of the act. I am sure most politicians cannot tell the difference, and fewer of them even care.

The good part about the law and your sentencing guidelines is that they apply broadly and equally to all of us with the possible exception of friends of the president and OJ Simpson. (Proving that we are all innocent until proven broke...apologies to the late Johnny Cochran.)

I agree with you. I think there are plenty of statistics that make your point. The disadvantaged get treated worse by the system. I'm all for making efforts to fix that. But I think there is this old point about two wrongs dont make a right that applies here. Just because the poor are treated unfairly by overly harsh sentencing guidelines doesn't mean we should be upset when others receive relief from those same overly harsh sentencing guidelines. Instead, I think it is an opportunity to say to people in positions of power, "obviously you now understand that the sentencing guidelines can be applied to harshly based on your handling of the Libby case."

I agree with you about the hypocrisy issue, timing is important, but look at Kerry in the 2004 elections. Half the country thought his stand on Iraq was courageous (or at least just an honest change of heart) while half the country thought he was a hypocrite and a "flip-flopper." Timing is important, but I think it is mostly a matter of who it is that is deciding whether to call it hypocrisy or a simple change of heart.
Amen, Amen. Today we confirm that Justice is peaking.

After many moons of being a clandestine peruser of this blog thingy, the "President" has forced me to burst my chains of silence by the commutation of "Libby, Libby, Libby's" sentence. My comments are as follows: 1) the early release of the "Snooperintendent" from the Sheriff's confinement deserves more commentary from this blog than this trivial affront to the Donkey, 2) Who decides what's on the buffet at the Harrington house?
This is sad but a loooong time ago like ten years ago I stopped working on political campaigns in in party politics in Michigan... I made4 a lot of great friends but honestly the politicians themselves.... a lot of them were just not SLIME so much as just so self absorbed and just Here is an example...

I worked on a campaign for a woman who was trying to be a community college trustee and she was passionate and said she really believed that she could make a difference in the county and at that school and I believed in her and hse was a friend so I worked my Arse off for her just TIRELESSLY.... lit drops, envelopes fundraisers... Get Out The VOte calls endless crap... I ddi it with all of my friends ( I was single) so you know its actually kind of fun too. At the end, she WON!!! It was a HUGE victory because she was a longshot. It was a six year term she was to serve, and it was great for her.

THen just two years into her 6 year term this other guy who was county commissioner at the time, decides to run for State Senate.
Instead of continuing to do good work in her position, she instead pretty much abandons her office and the work she was doing to spend FULL time running as a replace him as county commissioner.

NOT ONE Year earlier she SOOO dedicated and happy to have won this huge victory and now she was throwing it ALLL away. She had no experience to be a county commisioner, and she was up against some REALLLLY tough people because of recent redistricting... but because she was sort of well, GREEDY, she was determined to run.

She LOST, of course and she had also given up her Trusteeship...

which was a BUNCH of CRAP and I FINALLY saw the light... I worked my arse off til 2 and 3 AM EVERY WEEKEND for months and months FOR WHAT???? for the party? for the county?? NO!!! FOR THIS WOMAN's PERSONAL political career.

IT was then that I realized that not all of them but a LOT of them are in it FOR THEMSLEVES!!!! I thought I could really make a difference working on local races, but in the end she did not care a bit about the county or the college just about herself.

I NEVER worked on another campaign and this does not mean that no one should ever, but I think that these offices to get elected to them you have to do kind of slimy things... and maybe after so many slimy acts you yourself TURN INTO a slime.

I cannot imagine why "Dubya" commuted Libby's sentence and I cannot imagine why Clinton pardoned Marc Rich. Just because they CAN I guess, OR maybe because those guys know where the bodies are buried or some crap...

I think its cover up anyway because he was tried for PERJURY NOT for the outing of the CIA chick. SO Still no one really knows what really went down... I sort of am starting to thing that Bush is just a goof and that Dick Cheney is some kind of piece of work.

HOWEVER I still VOTE and a lot of people do not even do that... People who do not even vote get the government they deserve.
NPR had an interesting piece on this today. I can only give you snippets, but as one person pointed out, Libby is not a danger to society and there's little chance he's going to lie to another Grand Jury, so the only reason he was going to prison was as punishment. And he's getting plenty of other punishments.

What's unfair is that Justice is being applied unevenly. Other people, including Mr. Rita, are convicted of the same or similar thing, lying to a Grand Jury, yet still must do hard time.

If we're going to have strict sentencing rules, they should be applied strictly.

If the President is going to be merciful, he should be merciful and grant pardons regularly.

According to a couple of accounts I've heard and read, the way it was done until the mid 90's was the an office at DOJ handled this and the President, Bush I, Reagan, Carter, Nixon, Ford, et al. mostly just reviewed and granted the Pardons. Clinton supposedly changed all this and Bush II did not change it back.

But what do I know? I'm a trademark lawyer. Today I met with owners of a Pancake house who have been sued in Federal Court for Trademark Infringement. We discussed the "Dawn Donut" doctrine.
Oh, yes. I am quite familiar with the "Dawn Donut." Hehehe.
WOW have not heard of Dawn DOnuts since I left Michigan.

Hey get this.. Bill is on the road home but I talk to him on the cell occasionally to make sure he does not get sleepy and he told me today that Scooter Libby was. for a time, a lawyer for Marc Rich.

They are less than an hour away they are almost to Salem. Spencer is,. of course WIDE AWAKE, as he slept most of the day on the way home in the van hahaha

My single status is nearing an end. I have to mentally prepare myself for the testosterone infusion to come, to share the remote, actuALLY COOK ETC.
Uh, Tyd? That interesting fact about Libby being Rich's lawyer? It's actually in the post you are commenting on.
The Dawn Donut doctrine is the result of dispute between the Michigan Dawn Donut people and a donut shop in Rochester, NY. Dawn Donut of Michigan had a Federal Trademark Registration, but the people in Rochester had been operating since before the registration issued, so they got to continue using the name Dawn Donut.

The key case in the 4th Circuit, where my case is being heard, involved the Hot Shoppes chain formerly operated by the Marriott company.

You are right that two wrongs don't make a right. What makes me mad isn't the commutation, it is the consistent position that DOJ has taken in every other case-- that uniformity is paramount and the guidelines should be followed (except when they want an upward variance). I agree with what the president said about the guidelines being too harsh; it just angers me that in every other case they say exactly the opposite.
It is?

Maybe I need to find a new blog. Or maybe start my own... Maybe I can get one at www. I personify banality .com

But then I would miss all of those great pictures and what fun would my life be if I could not torture all of you brilliant legal minds with tales of Spencer, Riley, Bill the luthier and my trips to Target?

I have to go trim the dog's nails now.
Tyd-- yeah! The post says "For 15 years Marc Rich was represented by Lewis "Scooter" Libby (yes, that one) in trying to get rid of the arrest warrant. " Do u jump right to the comments section?

Don't leave us! Your soup recipe alone made it worthwhile for me. And I have to know what happens with Habib.
My dad says you should send this as a letter to the editor, for say, The Dallas Morning News.
Hey did you REALLY try my soup recipe???? nah I am not going anywhere. Until all of you kick me out.

No I do not jump right to the comments, but sometimes I do not read the ENTIRE post when it is about legal stuff, because it all just makes my brain hurt.

Habib.... I love Habib. He totally GETS me.
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  • Tonya Foster

    Sep 21| Lectures

    Poet Tonya Foster is the author of the collection A Swarm of Bees in High Court. Her work has appeared in nocturnes, Callaloo, Traffic, Gulf Coast, and other journals. Her essays have appeared in NY Arts Magazine, NYFA Quarterly and The Poetry Project Newsletter. A co-editor of Third Mind: Teaching Creative Writing Through Visual Art, Foster teaches at California College of the Arts and lives in the Bay Area.

  • Steven Ehrlich and Frederick Fisher will present their firms’ collaboration as EHRLICH | FISHER on Otis College’s new Goldsmith Campus Academic Building and Residence Hall. The campus-wide expansion and renovation project includes a new academic building, 300-seat Forum (the venue for this lecture), café and dining commons, Student Life Center, and residence hall.

  • Opening Reception

    Sep 24| Special Event

    New York-based artist Polly Apfelbaum’s work has situated itself as a hybrid of painting, sculpture, and installation over a career spanning 30 plus years. Exploring the intricacies of color, Apfelbaum weaves her way, both literally and conceptually, through ideas of Minimalism, Pop aesthetics, and Color Field painting to blur the lines between two and three dimensional art making.

  • Artist Polly Apfelbaum in conversation with Connie Butler, within Apfelbaum's exhibition Face (Geometry) (Naked) Eyes.

  • John Keene

    Oct 05| Lectures

    John Keene is the author of the novels Annotations and Counternarratives, as well as several other works, including the poetry collection Seismosis, with artist Christopher Stackhouse, and a translation of Brazilian author Hilda Hilst's novel Letters from a Seducer. The recipient of a Whiting Award, Keene has been a member of the Dark Room Writers Collective and a Cave Canem fellow. He has served as the managing editor of Callaloo and taught at Northwestern. He currently teaches at Rutgers University-Newark and lives in New York.

  • Artist Polly Apfelbaum in conversation with David Pagel, within Apfelbaum's exhibition Face (Geometry) (Naked) Eyes.

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