b'LAW 101\nFUNDAMENTALS\nOF THE LAW\nNEW YORK LAW\nAND\n\nFEDERAL LAW\n\n2018 Edition\nMichael H. Martella, Esq.\n\n1\n\n\x0cThis work is licensed under a Creative Commons Attribution 4.0\nInternational License.\n\nAbout the Book\nThe author wishes to acknowledge that this textbook is a derivative of the wonderful textbook\nUnderstanding New York Law, 2013-14 Edition written by David Pogue, Elizabeth Clifford and\nAlan L. Schwartz, published by Upstate Legal Publishers. The author thanks them for graciously\ngranting him permission to adapt their work into this new Open Educational Resources textbook.\nThe author also wishes to give a special thanks to Kendra Dundon for all her invaluable advice\nand assistance in preparing this textbook for publishing.\n\nContents\n\nChapter 1 \xe2\x80\x93 MAJOR FACTORS IN CHOOSING AND WORKING WITH AN ATTORNEY\nChapter 2 \xe2\x80\x93 COMPARING AND CONTRASTING CIVIL AND CRIMINAL LAW\nChapter 3 \xe2\x80\x93 NEW YORK STATE AND FEDERAL COURT STRUCTURE AND SOURCES OF\nLAW\nChapter 4 \xe2\x80\x93 HOW THE UNITED STATES AND NEW YORK STATE CONSTITUTIONS\nAFFECTS OUR LIVES\nChapter 5 \xe2\x80\x93 THE PATH OF A NEW YORK STATE CRIMINAL CASE\nChapter 6 \xe2\x80\x93 TRAFFIC STOPS & DWI\nChapter 7 \xe2\x80\x93 DISCRIMINATION LAW\nChapter 8 \xe2\x80\x93 THE PATH OF A CIVIL TORT CASE\nChapter 9 \xe2\x80\x93 MARRIAGE, DIVORCE AND FAMILY LAW\nChapter 10 \xe2\x80\x93 COMMON ESTATE PLANNING PROCESSES AND DOCUMENTS\nChapter 11 \xe2\x80\x93 TAXES\nChapter 12 \xe2\x80\x93 REAL ESTATE TRANSFERS\nChapter 13 \xe2\x80\x93 RESIDENTIAL LEASE TRANSACTIONS\nChapter 14 \xe2\x80\x93 ELEMENTS OF A CONTRACT, CONSUMER PROTECTIONS, AND\nBANKRUPTCY\nChapter 15 \xe2\x80\x93 PRIVACY\n\n2\n\n\x0cCHAPTER 1\nMAJOR FACTORS IN CHOOSING AND WORKING WITH AN ATTORNEY\nINTRODUCTION\nWhy would one need an attorney? Perhaps you are buying or selling a house. Or, you are getting\nmarried and want a will. You may be starting a new business or have had difficulty with a\ncontractor and need assistance in pursing your grievance. You may be a landlord and need to evict\na tenant, or you may be a tenant and your landlord is violating your lease. You may have gotten a\nspeeding ticket or been charged with a DWI or some other crime. In these, and many other\ncircumstances, you may need the assistance and counsel of an attorney. So, who are attorneys, how\ndoes one become an attorney, what is his/her role, and how would you choose and work with one?\n\nPART I: BECOMING AN ATTORNEY IN NYS\nWHAT FORMAL EDUCATION IS REQUIRED TO BECOME AN ATTORNEY IN NYS?\n\xe2\x80\xa2 High School Degree\n\xe2\x80\xa2 Bachelor\xe2\x80\x99s Degree from an accredited college\n\xe2\x80\xa2 Juris Doctorate Degree from an American Law School\nThere are some exceptions and special rules for attorneys who move to NYS from another country.\nThose will depend on what country and legal system they are licensed to practice in.\nRegarding the college degree, law schools are not particularly concerned about a student\xe2\x80\x99s major.\nMost important are your college grades and your score on the Law School Admission Test, most\ncommonly known as the LSAT. Law school is typically a three-year program, and most law\nschools require full-time attendance. One can attend any law school in the United States and\napply to practice in NYS, as long as the law school is approved by the American Bar\nAssociation, also known as the ABA. The ABA is the recognized national representative of the\nlegal profession. Most American law schools award a JD (Juris Doctor) degree.\nThe following is a list of ABA approved law schools in NYS:\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nAlbany Law School (Albany, NY)\nBrooklyn Law School (Brooklyn, NY)\nCUNY School of Law (Flushing, NY)\nColumbia Law School (New York, NY)\nCornell Law School (Ithaca, NY)\nFordham University School of Law (New York, NY)\nHofstra University School of Law (Hempstead, NY)\nNew York University School of Law (New York, NY)\nPace University School of Law (White Plains, NY)\nSaint John\'s University School of Law (Queens, NY)\n3\n\n\x0c\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nState University of New York at Buffalo (Buffalo, NY)\nSyracuse University College of Law (Syracuse, NY)\nTouro College Law Center (Central Islip, NY)\nYeshiva University Benjamin N. Cardozo School of Law (New York, NY)\nNew York Law School (New York, NY)\n\nWHAT IS NEXT AFTER GRADUATION FROM LAW SCHOOL?\nAfter graduation from an approved law school, you are still not an attorney. You are technically\nonly a law-school graduate with a JD degree. Graduating from law school, in and of itself, does\nnot qualify you to practice law. The New York Judiciary Law \xc2\xa7 478 makes it unlawful for anyone\nto practice, appear, or hold themselves out to be an attorney, lawyer, or counselor-at-law without\nfirst being duly authorized. So, how does one become duly authorized? To actually become an\nattorney, the law school graduate must decide in what state(s) he/she wishes to practice law and\nmust submit to a professional qualifying test known as the Bar Exam in that state/those states.\nPassing this exam ultimately qualifies the law school graduate the right to practice law in that\ngiven state. As of July 2016, New York State is now administering the Uniform Bar Exam, which\nis also called the UBE.\nThe UBE is administered on the last Tuesday and Wednesday of February and July. During the\nmorning session on Tuesday, applicants are given three hours to complete two Multistate\nPerformance Test (MPT) items. During the afternoon session on Tuesday, applicants are given\nthree hours to answer six Multistate Essay Exam (MEE) questions. On Wednesday, applicants will\ntake the Multistate Bar Examination (MBE), which is a six-hour, 200 question multiple-choice\nexam divided into two 3-hour sessions. The passing score for the exam varies from state to state.\nIn NYS, the passing score is 266 out of a 400-point scale. The score is transferable between states\nthat also administer the UBE. As of May 2018, there are 31 states and US territories that have\nadopted the UBE. The remaining states have their own individual bar exams.\nAfter passing the UBE, there are several more hurdles left before a law school graduate can\npractice law in NYS. An applicant for admission in New York must also take and complete an\nonline course in New York-specific law, known as the New York Law Course (NYLC), and must\ntake and pass an online examination, known as the New York Law Exam (NYLE). Applicants\nmust comply with the 50-hour pro bono service requirement. Applicants must also take and pass\nthe Multistate Professional Responsibility Examination (MPRE). Additionally, applicants who\ncommence their law school studies after August 1, 2016 must comply with the Skills Competency\nRequirement. Finally, applicants must satisfy the character and fitness requirements by appearing\nbefore the committee on character and fitness. If one has a felony conviction, that will be a\ndisqualifier.\n\nPART II: CHOOSING AN ATTORNEY\nHOW DO YOU FIND AN ATTORNEY?\nOne way is by word-of-mouth, or professional reputation. You may ask and talk to friends and/or\nfamily members about an attorney who they have liked or disliked, for a particular legal matter\nlike a speeding ticket or divorce. Or, you may talk to a business associate of attorneys who will\n4\n\n\x0crecommend an attorney for a particular legal matter. For example, you may be in the process of\nselling or buying a house and your real estate agent recommends an attorney for a real estate\nclosing.\nSecondly, there is attorney advertising. Attorney advertising, like all professional advertising, is\nthe exercise of the constitutionally protected right to freedom of speech (Bates v State Bar of\nArizona, (1977) 433 US 350). You will find attorneys advertising on billboards, television, the\nradio, and the internet. These ads may help you find an attorney to fit your particular legal needs.\nHowever, as is true with all advertising, you should do your own due diligence and research to\ndetermine if these attorneys and/or firms are the right fit for you. While many of these ads will\nindicate an attorney\xe2\x80\x99s or firm\xe2\x80\x99s expertise, or area of concentration in a particular area of law, NYS\ndoes not have any specialized certifications of attorneys. All attorneys are qualified to practice in\nany area of law. However, many do limit themselves to certain areas of law like criminal or\npersonal injury. An attorney\xe2\x80\x99s experience in a particular area of law may be a major factor in\nhelping you choose an attorney.\nAnother method is through various attorney referral services. In NYS, each county has its own\nlocal Bar Association under the umbrella of the NYS Bar Association located in Albany, NY.\nEach of these local bar associations has some sort of attorney referral program. There are also\nnon-profit legal services available like Legal Aid. For criminal matters, based on your income or\nwealth, you may be entitled to legal representation by the Public Defender\xe2\x80\x99s office.\nI THINK I FOUND AN ATTORNEY. NOW WHAT?\nA friend or family member has recommended an attorney and from what they are telling you,\nshe/he seems perfect for your particular legal needs. Now what? You will need to make an\nappointment and have your first attorney-client in-person meeting. This meeting is really a twoway interview to determine whether the proposed personal/professional relationship will be taken\nfurther. It is the time for both parties to decide whether this will be a good fit. This initial\nconsultation is as much for the attorney\xe2\x80\x99s information gathering as it is for the client to make a\nbasic assessment of the attorney\xe2\x80\x99s appearance, office set-up, competence, availability, time, and\ncost. Some attorneys charge a fee for this initial consultation, some do not.\n\nPART III: HOW ATTORNEYS GET PAID AND ATTORNEY FEES\nSome attorneys work as salaried employees just like many others in our economy. Examples of\nsalaried attorneys are patent/trademark attorneys who work for major corporations. Others may be\nagency or government employees such as criminal prosecutors who work for a District Attorney\xe2\x80\x99s\nOffice, or criminal defense attorneys who work for a Public Defender\xe2\x80\x99s Office. Some may work\nas trust officers for a bank or other financial institution or become judges or town attorneys. Some\ngo into politics or become television personalities. However, these are not typically the attorneys\nyou would hire to give you legal advice or represent you in a legal matter.\nClient-specific attorneys often work for themselves as solo practitioners, or perhaps share office\nspace with other attorneys, but not their clients. Many are associates and/or partners in law firms\n\n5\n\n\x0cwhich can range in size from two attorneys to thousands of attorneys in national and even\ninternational law firms.\nHOW DO CLIENT-SPECIFIC ATTORNEYS GET PAID?\nAttorneys are paid primarily for two things, their time and their legal advice. How much an\nattorney charges for these two things varies greatly from attorney to attorney. The cost of an\nattorney often varies based on the location. Attorneys in New York City often charge much more\nthan those in Upstate or Western New York State. It can vary based on the particular area of law\nconcentration or expertise of an attorney or law firm. It can vary based on the reputation of an\nattorney as well. Regardless, the compensation of client-specific attorneys is determined, directly\nor indirectly, in one of four ways: flat fee, hourly, on a contingency fee basis, or on retainer.\nFlat fee payment arrangements: This is a task-based method of payment. This fee arrangement\nis particularly suited to a legal task that is deemed routine or predictable, in both time required and\ncomplexity.\nSome examples of this type of legal work may include:\nName changes\nUncontested divorces\nReal Estate Closings\nWills\nPower of Attorney documents\nCriminal Defense Representation\nTraffic Court Appearance\nEvictions\nHourly fee payment arrangements: This is legal compensation based on a fixed hourly rate.\nMost attorneys charge more per hour for \xe2\x80\x9cin court\xe2\x80\x9d time than they do for office work. Fractional\nhours are billable hours. This may range from one-tenth of an hour (i.e. every six minutes) to every\nquarter-hour (15 minutes), or half-hour (30 minutes). Phone calls (whether to, from, or about\nclients), text messages, and emails count as much as face-to-face meeting time. These fees can\nrange from small town attorneys charging $100 per hour, to large firm attorneys in major cities\ncharging $725 per hour. Back in 2013, the ABA Journal published that the average billing rate for\npartners ranged from $343 at firms of 50 or fewer lawyers to $727 at firms of more than 1,000\nlawyers.\nContingent fee payment arrangements: With this fee arrangement, an attorney only gets paid if\nhe/she wins a case. The attorney then gets paid a percentage, often between 25-33% of any\nmonetary judgment or settlement. What is important to remember is that an attorney who takes\non a contingent fee case, and loses, does not get paid. Secondly, contingent fee arrangements are\nuniquely applicable to personal injury actions, and are inherently inapplicable to matters like\ncriminal defense, divorces, obtaining patents, or adoptions. Most often in personal injury actions,\nthere are expenses that go beyond attorney fees. Filing fees, fees for obtaining documents, expert\nwitness fees, travel expenses, deposition transcripts, and getting copies of medical records all cost\nmoney. An attorney who works on a contingent fee basis cannot pay for these client expenses of\nlitigation. The client is responsible for these expenses whether they win or lose their case. With all\nof this in mind, attorneys who work on contingency fee cases are careful to take on cases they\n6\n\n\x0cbelieve they can win. They typically do not want to work for free. When a client unsuccessfully\nshops their case around with several firms, it is usually because the case is likely not going to go\nwell for the client.\nOn retainer fee payment arrangements: In some circumstances, a client anticipates having an\non-going and substantial need for an attorney\xe2\x80\x99s professional services. In these circumstances, an\nagreement may be reached that for an agreed-upon fee, the attorney will be \xe2\x80\x9con call\xe2\x80\x9d to such a\nclient. The attorney is then guaranteed at least the agreed-upon amount for remaining available to\ndo whatever legal work is required for the client. This sometimes referred to as being on retainer.\nWHAT IS A RETAINER AGREEMENT?\nA retainer agreement is a signed written document between the client and the attorney on how the\nattorney is going to be paid. Not all legal representation requires the signing of a retainer\nagreement. Often attorneys forgo a retainer agreement for legal work such as representing a client\nin a town court for a traffic ticket or preparing a will. However, retainer agreements are highly\nencouraged, and in some circumstances, legally required to prevent any down-the-road\nmisunderstandings of how an attorney is going to be paid. This signed written confirmation of the\nmutually-agreed-upon fee arrangement is to be distinguished from \xe2\x80\x9cbeing on retainer\xe2\x80\x9d in that a\nretainer agreement sets out how an attorney is to be paid, whether by flat fee, hourly, on\ncontingency, or being on retainer. It may also set out whether the attorney is requiring an advance\nor upfront payment by the client. This is much like a deposit which the attorney can draw from as\nthe legal matter proceeds. Part or all of an advance, or upfront retainer fee, may be refundable\ndepending on the agreement between the client and attorney. There are also some legal restrictions\nplaced on attorneys on how much of an advance, or upfront retainer fee, they can keep if the legal\nrepresentation of a client prematurely ends.\nThe following is an example of a contingency fee retainer agreement:\nCONTINGENT FEE RETAINER AGREEMENT\nTHIS AGREEMENT is made and entered into this ____ day of _____, 20__ by and between the\nlaw firm of _________________________, hereinafter referred to as \xe2\x80\x9claw firm\xe2\x80\x9d and\n________________________, hereinafter referred to as \xe2\x80\x9cclient(s).\xe2\x80\x9d\nWHEREAS, the law firm is a firm of regularly practicing attorneys located in\n____________________, New York, who engage in litigation involving personal injury and\nproperty damage, and\nWHEREAS, client(s) believe(s) that (s)he may have claim or cause of action for personal injury\nand/or property damage against (insert appropriate name(s)) or any other person, firm, or\ncorporation that may be liable thereto resulting from an incident that occurred on the (date) day of\n(month, year).\nWHEREAS, the client(s) is/are desirous of hiring said law firm to proceed against said\nDefendant(s), or some of them, or any other person\xe2\x80\x99s legal entities or insurers against whom a\nrecovery might be obtained, as determined by the discretion of said law firm.\n7\n\n\x0cNOW, THEREFORE, the client(s) and law firm do hereby mutually agree that the law firm will\nproceed as it shall deem appropriate to affect a recovery for any and all personal injury and/or\nproperty damage that has been sustained by client(s).\nClient(s) shall, upon the signing of this Agreement, pay the law firm the sum of $(dollar amount)\nthat shall be applied upon account for expenses as needed, to obtain photographs, hospital reports,\nto secure records and documents, to pay the costs of medical examinations and reports, fees for\nexpert witnesses, and the costs of service of notice of suit and filing of Petition. Law firm may\ndemand from time to time, and client(s) shall pay such, additional sums as shall be necessary to\npay said expenses. Any expense fund balance shall apply on law firm\xe2\x80\x99s fees; however, such\nbalances so applied, unless hereinafter otherwise set forth, shall be considered in determining the\npercentages hereinafter referred to.\nClient(s) further agree(s) that, in addition to the expenses or including the expenses referred to in\nthe preceding paragraph, or if not otherwise paid, the client(s) will pay in advance all out-of-pocket\ncosts of suit, including any and all costs of suit, including any and all costs as may be necessary\nfor the opening of an Estate, Guardianship, or Conservatorship, as herein after set forth, and all\nout-of-pocket expenses to discover, preserve, and present evidence, to prepare for trial, and\nclient(s) further agree(s) to pay all reasonable incidental expenses, including reasonable and\nnecessary travel costs. Client(s) agrees(s) to pay all said fees promptly at the request of the law\nfirm.\nClient(s) and law firm further agree that, in the event of recovery, such expenses as hereinabove\nreferred to, not already paid, shall be paid by client(s) from his/her/their share of the proceeds as\nhereinafter set forth.\nIn the event of recovery, the amount of recovery shall be used as a basis for compensation as\nhereinafter specified. The firm shall receive an amount equal to thirty-three and one-third\npercent (331/3rd) of said recovery in money or property if effected by settlement made after\nservice of notice of suit, or up to the time of the beginning of the selection of the jury in said\ntrial or if made at any point between the beginning of the selection of the jury and the final\ndecision of the jury, or after appeal if an appeal is taken.\nClient(s) and law firm further agree that law firm may, at its own expense, employ another\nattorney, or attorneys, in such place or places as may appear desirable to assist in the above matter.\nIf client(s) employ(s) another attorney, or attorneys, in this matter, such employment shall be at\nthe client\xe2\x80\x99s expense and shall not affect the amount due law firm under this contract. If client(s)\nshould settle or collect his/her/their claim himself/herself/themselves, such fact shall not affect the\namount due law firm under this agreement. Client(s) agree(s) that any settlement of this claim shall\nbe made through, and at the offices of, said law firm.\nClient(s) and law firm further agree that, in the event the proper prosecution of this case requires\nproceedings in an Estate or Guardianship, the law firm herein shall in addition to the contingent\nfee herein agreed upon, be reasonably compensated for such services in the event of recovery as\nallowed by the Court and provided by law. Should there be no recovery, client(s) shall pay to the\n\n8\n\n\x0claw firm such reasonable amount for opening and closing such Estate or Guardianship as allowed\nby the Court, and as provided by law.\nClient(s) and law firm further agree that all sums due herein shall be paid at the offices of (your\naddress).\nClient(s) and law firm further agree (insert as needed).\nClient(s) and law firm further agree that except as may be heretofore set forth, or as provided by\nlaw for the administration of assets other than this lawsuit, said attorneys shall receive no\ncompensation for services rendered under this Agreement if there is no recovery of money and/or\nproperty.\nSigned and dated at ____________________________________, on the date first above written.\n__________________________________\n(Law Firm Name)\nBy:\n(Attorney Name)\n\n_______________________________\n_________________________________\n\n(Client name)\n__________________________________\n(Client name)\n\nPART IV: ATTORNEY ETHICS\nAll attorneys who practice law are subject to a Code of Ethics and can be professionally disciplined\nfor failing to meet minimal performance and ethical standards.\nHOW ATTORNEYS ARE PROFESSIONALLY DISCIPLINED.\nComplaints alleging attorney misconduct whether brought by clients, fellow attorneys, or others\ncan be made to an attorney grievance commission. The commission conducts a thorough\ninvestigation, and issues a written report, either dismissing the complaint or recommending to the\nAppellate Division, that the attorney be disciplined in one of three ways ranging from least to most\nserious.\nCensure: This is a public statement that an attorney has done something wrong. Censure is the\nleast serious form of attorney discipline. While embarrassing to the attorney, it does not include\nany restrictions on the attorney\xe2\x80\x99s right to continue to practice law in NYS.\nSuspension: This is for more serious professional misconduct. It requires an attorney to take a\n\xe2\x80\x9cleave\xe2\x80\x9d from the practice of law in NYS for a period of time ranging from months to years. It may\nrequire restitution and/or rehabilitation measures such as counseling and treatment for alcohol\n9\n\n\x0cand/or drug abuse. A written report that a suspended attorney\xe2\x80\x99s problem has been resolved may\nresult in his/her re-instatement to practice law.\nDisbarment: This is the most serious of all attorney discipline measures, and results in a lifetime\nban on any further practice of law in NYS. With reciprocity agreements, it is also a lifetime ban\non the practice of law in any other state as well. An attorney\xe2\x80\x99s felony conviction that has not\nbeen reversed on appeal is a reason for disbarment. Other possible grounds for disbarment\ninclude creation of evidence known to be false, perjury, and assisting a client in conduct known\nto be illegal. Some attorneys choose to voluntarily resign from the Bar when facing imminent\ndisbarment. Upon a voluntary resignation from the Bar, the lifetime ban on the practice of law is\nthe same as for disbarment. Voluntary resignation amounts to an attorney opting for a facesaving action. President Clinton chose to resign from the Arkansas Bar, rather than face pending\nperjury charges.\nAnalogous to attorney disciplinary actions applicable to NYS judges, from least serious to most\nserious, are censure, admonition, and removal from office, with resignation always an ultimate\nalternative.\n\nPART V: Other Attorney-Related Matters\nTHE ATTORNEY-CLIENT PRIVILEGE.\nThe attorney-client privilege is a requirement of professional confidentiality, akin to the priestpenitent and the doctor-patient privileges.\nWhat the attorney-client privilege means is that what is told by a client to his/her attorney is not to\nbe told by the attorney to anyone else, without the client\xe2\x80\x99s express permission. This is not an\nabsolute privilege. There are limits. For example, anything said by a client to their attorney, on\nany matter whatsoever, which speaks to the intent by the client to commit a future illegal act is not\ncovered by the privilege. Statements made by a client to their attorney with no reasonable\nexpectations of privacy or confidentiality are not covered by the privilege. For example, a client\xe2\x80\x99s\nstatement shouted to an attorney in a crowded courtroom hallway.\nThe attorney-client privilege applies not only to statements made to their attorney, but also to the\nattorney\xe2\x80\x99s office staff, ranging from an attorney\xe2\x80\x99s receptionist to any attorney associate or partner\nof the attorney. The attorney-client privilege not only applies to a client statement, but also to other\nclient-related information, including the fact that the individual is even a client of the attorney, or\nhad an appointment with the attorney.\nSo, what is the definition of a client? In general, a client is generally defined as the intended and\nimmediate beneficiary of the lawyer\xe2\x80\x99s services. To be considered a client for the purpose of\ninvoking the attorney-client privilege, two conditions must be met. First, the client must\ncommunicate with the attorney to obtain legal advice, and second, the client must interact with the\nattorney to advance the client\xe2\x80\x99s own interests. A prospective client communication is protected,\neven if never retained.\nWHO ARE PARALEGALS AND WHAT DO THEY DO?\n10\n\n\x0cThe American Bar Association defines a paralegal as:\n\xe2\x80\x9cA legal assistant or paralegal is a person, qualified by education, training or\nwork agency or other entity and who performs specifically delegated\nsubstantive legal work for which a lawyer is responsible.\xe2\x80\x9d\nParalegals assist supervising attorneys in a variety of tasks, from in-take interviewing, to\ninformation gathering, to completing legal forms, to drafting documents. A paralegal cannot\npractice law, meaning they cannot give legal advice, cannot appear in court with a client, and\ncannot establish an attorney-client relationship.\nThere is no certification or educational requirements for paralegals in NYS, and this is true in most\nother states. So, in NYS, anyone can hold themselves out as a paralegal. However, most NYS\nparalegals have either experience working in a law office and/or have obtained a degree or\ncertificate recognizing completion of a formal paralegal education program.\nWHO ARE NOTARY PUBLICS AND WHAT DO THEY DO?\nA notary public (often referred to as a notary) is someone who is licensed by NYS to determine\nthe identity of a person signing a legal document. The notary then affixes their signature and\nnotary stamp to acknowledge that a signed document has been legally and properly signed.\nThe role of a notary public is all too often misunderstood. This is especially true for those that\nimmigrate to the United States from some Spanish speaking countries. The term \xe2\x80\x9cnotary public\xe2\x80\x9d\nin Spanish is \xe2\x80\x9cnotario publico,\xe2\x80\x9d which in several countries means \xe2\x80\x9ca person highly specialized in\nthe practice of law.\xe2\x80\x9d In NYS, a notary public who is not an attorney cannot give legal advice,\nexplain legal documents, draft legal documents, or legally represent someone.\nMost attorneys are a notary public. However, non-attorneys can also be a notary public. All that is\nrequired to be a notary public is to pass a written test (attorneys seeking to become notaries are not\nrequired to take this test) as to the powers, duties, and regulations applicable to notaries.\n\nReferences:\nAmerican Bar Association. (June). Retrieved June 3, 2018, from\nhttp://www.americanbar.org/aba.html\nBOLE- OFFICIAL PAGE NEW YORK STATE BAR EXAMINATION. (n.d.). Retrieved June\n5, 2018, from http://www.nybarexam.org/\nHome. (n.d.). Retrieved June 5, 2018, from http://www.ncbex.org/\nNew York State. (n.d.). New York State Unified Court System. Retrieved June 7, 2018, from\nhttp://nycourts.gov/\n\n11\n\n\x0cPogue, D. L., Clifford, E., & Schwartz, A. L. (2009). Understanding New York Law, 2013-14.\nUpstate Legal Publishers\nSchool of Law. (2018, June 04). Retrieved July 23, 2018, from http://www.law.buffalo.edu/\n\n12\n\n\x0cCHAPTER 2\nCOMPARING AND CONTRASTING CIVIL AND CRIMINAL LAW\nINTRODUCTION\nThe law is generally divided into two categories - civil and criminal law. This chapter will assist\nthe student in identifying the differences and similarities between them.\nEXAMPLES OF CRIMINAL CASES IN NEW YORK STATE:\n\xe2\x80\xa2\n\nMURDER/HOMICIDE: The unjustified taking of another human life.\n\n\xe2\x80\xa2\n\nROBBERY: Stealing property by force from another person.\n\n\xe2\x80\xa2\n\nLARCENY: The intent to wrongfully take, withhold, or obtain the property of\nanother person.\n\n\xe2\x80\xa2\n\nARSON: The burning of another person\'s dwelling, building, car, etc.\n\n\xe2\x80\xa2\n\nBURGLARY: The knowingly entering or remains unlawful in a building with\nthe intent to commit a crime therein.\n\n\xe2\x80\xa2\n\nRAPE: Having sex with an individual without their legal permission.\n\n\xe2\x80\xa2\n\nASSAULT: Intentionally or recklessly striking and injuring a person.\n\n\xe2\x80\xa2\n\nDRUG OFFENSES: Selling or possessing illegal drugs or controlled\nsubstances.\n\nCOMMON EXAMPLES OF CIVIL CASES IN NEW YORK STATE:\n\xe2\x80\xa2\n\nWRONGFUL DEATH: Asking for money damages when the death of a person\nis caused by another.\n\n\xe2\x80\xa2\n\nCONVERSION: The unauthorized assumption and exercise of the right of\nownership over property belonging to another to the exclusion of the owner\'s\nrights.\n\n\xe2\x80\xa2\n\nDIVORCE: Terminating the marital relationship.\n\n\xe2\x80\xa2\n\nNEGLIGENCE: Cases such as personal injury claims, car accidents, and\nmedical malpractice cases.\n\n\xe2\x80\xa2\n\nASSAULT AND BATTERY: A civil assault is the intentional placing of\nanother person in fear of imminent or harmful contact, and battery is an\nintentional wrongful physical contact with another person without consent.\n\nCAN A PERSON COMMIT A CRIME AND ALSO BE SUED IN A CIVIL COURT FOR\nTHE SAME ACT?\nThe answer is yes. Some actions involve both criminal and civil matters. For example, assault can\nbe both a civil matter and a criminal matter. It is criminal case because when one person\nintentionally strikes and injures another individual, he has committed a crime in violation of the\n13\n\n\x0cPenal Code. At the same time, if a victim of said crime receives injuries and experiences pain and\nsuffering, he can sue the person who caused the injury in civil court for money damages to\ncompensate the victim for his medical expenses, pain and suffering.\nMany court cases can be both civil and criminal. For example, a person who has intentionally\nkilled another can be charged in criminal court with homicide and can also be sued civilly for\nwrongful death. A person who takes your car can be charged criminally with larceny and can be\nsued civilly for conversion.\nBecause the standard of proof in a criminal case is higher than that of a civil lawsuit, a guilty\nverdict or plea may help a plaintiff in their civil lawsuit. However, a not guilty verdict in the\ncriminal case does not stop the civil case from proceeding forward on its own merits.\nWHAT LAW APPLIES?\nHow many laws exist in the United States? No one really knows for sure. It is estimated that there\nare at least 20,000 laws just regulating guns. Perhaps as many as 300,000 federal regulations\ninclude criminal penalties if violated. Regardless of the number, the following is where you will\nfind them in NYS and at the federal level.\nNew York - Consolidated/Unconsolidated Laws\nCriminal\n\xc2\xa7 Penal Law\n\xc2\xa7 Criminal Procedure Law\nCivil\n\xe2\x80\xa2 Civil Practice Law and Rules\nFor administrative law, the New York Codes, Rules and Regulations (NYCRR) contains the state\nagency rules and regulations.\nFederal \xe2\x80\x93 Code of Laws of the United States (U.S.Code or U.S.C.)\nCriminal\n\xe2\x80\xa2 U.S. Code: Title 18 \xe2\x80\x93 Crimes and Criminal Procedure\n\xe2\x80\xa2 Federal Rules of Criminal Procedure\nCivil\n\xe2\x80\xa2 Federal Rules of Civil Procedure\nThe Code of Federal Regulations (CFR) is the official record of all federal government regulations.\nThe CFR consists of 50 volumes called titles, each of which focuses on a particular area.\nWHO IS THE VICTIM?\nIn both a civil and criminal case, the victim is a person or entity (such as an agency, business, or\ncorporation) that is harmed, injured, killed, or has their property rights violated.\nWHO ARE THE PARTIES AND WHO BRINGS THE CASE TO COURT?\nIn a criminal case, the party bringing the action is the people of NYS, not the victim. In other\nwords, the People are society. The district attorney or prosecutor decides whether the case will be\nbrought to court on behalf of the People. The victim has no control on whether a criminal case will\n14\n\n\x0cbe brought to court. If a criminal case is brought to court by the People, it will be against an accused\nknown as the defendant. In a civil case, the victim files a lawsuit in civil court. They are known as\na plaintiff. The party they file their lawsuit against, who they believe has wronged them, is known\nas the defendant.\nIS THE CASE CAPTIONING THE SAME FOR CIVIL AND CRIMINAL CASES?\nThe case caption is the name of a civil or criminal case. It is not the same for criminal and civil\ncases. Criminal cases in NYS will have a case caption that typically reads: THE PEOPLE OF THE\nSTATE OF NEW YORK, v. JOHN DOE. The State of New York is the party charging a suspect\nwith a crime, so they are the first party named in a criminal case caption with the second name\nbeing the defendant. In NYS civil cases, it will name the parties with the first name being the\nplaintiff and the second name being the defendant. A typical NYS civil case caption may read:\nJohn Doe v. EYZ Corporation.\nWHO IS SEEKING WHAT?\nIn a criminal case, the people of NYS (society) seek to punish the defendant, who is the perpetrator\nof the crime. Besides punishment, rehabilitation of the defendant, as well as deterrence from\ncommitting future crimes, is often sought by society. The defendant is seeking to have the case\ndismissed prior to a trial. If unsuccessful, the defendant may seek a plea bargain to lessen the\ncharge and/or punishment or end the case before trial. If unsuccessful in obtaining a plea bargain,\nthe defendant is seeking a not guilty verdict from the jury or judge. The vast majority of criminal\ncases end with a plea bargain.\nIn a civil lawsuit, the person suing in most instances is seeking a verdict in their favor in money\ndamages for the wrong they suffered. This is often referred to as \xe2\x80\x9cmaking the plaintiff whole\nagain\xe2\x80\x9d. So, what does making a person whole again mean? If you are injured in an automobile\naccident due to the negligence of a defendant and you are now a paraplegic, there is nothing a court\ncan do to get you back to your normal physical self. However, the court can award you money\ndamages to be paid by the defendant. This is the only way a court can make you whole again.\nIn some civil lawsuits, money damages may not be the best or only remedy sought by a plaintiff.\nThe plaintiff may need an injunction to stop the defendant from doing something that is harming\nor wronging them or ask the court for specific performance to force the defendant to do something.\nFor example, if your neighbor is dumping the water of his swimming pool repeatedly on your\nproperty, which is causing flooding and killing your grass, you may not only be interested in being\ncompensated for monetary damages you have suffered, but you may also wish to prevent the\ndumping from happening again. In such an instance, a judge may issue an injunction, which is an\norder from the judge to the neighbor barring them from doing it again in the future. If you were\nbuying a specific antique and the dealer would not deliver it to you after payment, you may ask\nthe court to issue a specific performance order requiring the defendant to give you that specific\nantique you paid for.\nThe defendant will be seeking a dismissal of the case prior to trial. If unsuccessful, they may seek\na settlement with the plaintiff. This requires a negotiated agreement between the plaintiff and the\ndefendant on the resolution of the lawsuit. If unsuccessful in getting either a dismissal or working\nout a settlement, the defendant will seek a verdict in their favor from a jury or judge.\n15\n\n\x0cWHAT IS THE STANDARD OF PROOF AND WHO HAS THE BURDEN OF PROOF?\nIn criminal cases, the People of the State of New York have the burden of proof. In civil cases, the\nplaintiff has the burden of proof.\nIn a criminal case, the standard of proof is \xe2\x80\x9cbeyond a reasonable doubt.\xe2\x80\x9d The District Attorney\nhas the task of proving to the jury each and every element of the crime beyond a reasonable doubt.\nThis is the highest, most demanding standard in any court. If the prosecutor fails to do this, the\njury must come back with a verdict of \xe2\x80\x9cnot guilty.\xe2\x80\x9d\nThe New York Pattern Jury Instructions are the official guide to judges on how to instruct or charge\na jury on all civil and criminal matters. The New York Pattern Jury Instructions charge for beyond\na reasonable doubt reads in part:\nWhat does our law mean when it requires proof of guilt "beyond a reasonable\ndoubt"? The law uses the term, "proof beyond a reasonable doubt," to tell you how\nconvincing the evidence of guilt must be to permit a verdict of guilty. The law\nrecognizes that, in dealing with human affairs, there are very few things in this\nworld that we know with absolute certainty. Therefore, the law does not require the\nPeople to prove a defendant guilty beyond all possible doubt. On the other hand, it\nis not sufficient to prove that the defendant is probably guilty. In a criminal case,\nthe proof of guilt must be stronger than that. It must be beyond a reasonable doubt.\nA reasonable doubt is an honest doubt of the defendant\'s guilt for which a reason\nexists based upon the nature and quality of the evidence. It is an actual doubt, not\nan imaginary doubt. It is a doubt that a reasonable person, acting in a matter of this\nimportance, would be likely to entertain because of the evidence that was presented\nor because of the lack of convincing evidence.\nProof of guilt beyond a reasonable doubt is proof that leaves you so firmly\nconvinced of the defendant\'s guilt that you have no reasonable doubt of the\nexistence of any element of the crime or of the defendant\'s identity as the person\nwho committed the crime.\nThe two standards of proof in civil litigation are a preponderance of the evidence, and clear and\nconvincing proof. In most civil lawsuits the plaintiff must only establish their case by a\npreponderance of the evidence. Preponderance of the evidence means that it is more likely than\nnot that the defendant is legally responsible for the plaintiff\xe2\x80\x99s injuries. If the plaintiff proves their\ncase by more than 50 percent of the evidence, the jury must come back with a verdict in favor of\nthe plaintiff.\nIn some civil lawsuits, the plaintiff may have to prove their case by clear and convincing evidence.\nThis standard is sometimes required in administrative hearings, fraud cases, and in some family\nlaw cases. It is a higher standard than preponderance of the evidence, but a lower standard than\nbeyond a reasonable doubt. Clear and convincing evidence requires a jury or judge to find that the\nplaintiff has proven their case so that it is highly probable that what the plaintiff claims is what\nhappened.\n\n16\n\n\x0cThe New York Pattern Jury Instructions provide the following explanation of these respective\nstandards of proof:\nClear and Convincing evidence means evidence that satisfies you that there is a\nhigh degree of probability that there was (e.g., fraud, malice, mistake, a gift, a\ncontract between the plaintiff and the deceased, incompetency, addiction), as I\n(have defined, will define) it for you.\nTo decide for the plaintiff, it is not enough to find that the preponderance of the\nevidence is in the plaintiff\xe2\x80\x99s favor. A party who must prove (his, her) case by a\npreponderance of the evidence only need satisfy you that the evidence supporting\n(his, her) case more nearly represents what actually happened than the evidence\nwhich is opposed to it. But a party who must establish (his, her) case by clear and\nconvincing evidence must satisfy you that the evidence makes it highly probable\nthat what (he, she) claims is what actually happened.\nWHAT DO WE CALL THE ATTORNEYS IN THESE CASES AND WHO PAYS FOR\nTHEM?\nIn a NYS criminal case, the person who brings the case is called the District Attorney. They are\nsometimes referred to as the prosecutor. The District Attorney is an elected official chosen by the\nvoters in each county. His/her term is four years. The District Attorney will also have Assistant\nDistrict Attorneys (ADAs) who actually do the bulk of the prosecuting. They are paid for by the\nlocal/state government.\nIn a criminal case, the defendant is represented by his own attorney, called a defense attorney.\nThey are sometimes referred to as defense counsel. They are paid for by the defendant. If the\ndefendant is unable to afford an attorney, the court will appoint one to represent him/her. This\nwill usually be an attorney from the Public Defender\'s Office. Under this system, the Public\nDefender and her/his Assistants represent indigent defendants who are charged with a crime in\nlocal criminal courts. In counties that do not have a Public Defender, or in cases where there may\nbe a conflict of interest in having the Public Defender represent an indigent criminal defendant,\nthe court may appoint a private attorney known as assigned counsel. The Public Defender and\nassigned counsel are paid for by the local/state government.\nA conflict of interest usually arises when there are two indigent co-defendants. The Public\nDefender\'s Office cannot represent both clients. One client would be represented by the Public\nDefender\'s Office and the trial judge would have to assign an attorney in private practice to act as\nassigned counsel for the other defendant.\nIn a civil case, the person bringing the suit is referred to as the plaintiff. Their attorney is called\nthe plaintiff\xe2\x80\x99s attorney. The plaintiff\'s attorney is paid for by the plaintiff himself. A plaintiff or\ndefendant who is indigent may be able to seek legal assistance from some nonprofit legal\norganizations such as the Legal Aid Society or from attorneys that work \xe2\x80\x9cpro bono\xe2\x80\x9d which means\nfor free or at a substantially reduced rate.\nIn a civil case, the party being sued is referred to as the defendant. Their attorney is called the\ndefense attorney. The defense attorney in a civil lawsuit is paid for by the defendant, unless the\ndefendant is indigent and is able to obtain pro bono representation (see above). If a defendant has\ninsurance coverage, they may be represented by an attorney paid for by their insurance carrier. For\n\n17\n\n\x0cexample, if you are the defendant in an automobile negligence case and have automobile insurance,\nyour insurance carrier will provide you with and pay for your attorney.\nWHAT IS THE NUMBER OF JURORS AND WHAT IS THE VERDICT REQUIRED?\nIn NYS a criminal defendant is always entitled to a jury trial if they face a misdemeanor or felony\ncriminal charge. The exception is in New York City where you are not entitled to a jury trial if you\nare charged with a B misdemeanor. In NYS felony jury trials have 12 jurors, and misdemeanors\njury trials have 6 jurors. A defendant may elect to waive a jury trial and proceed by judge alone,\nwhich is called a bench trial. In a criminal case, the verdict required by a jury must be unanimous.\nThis means all jurors must agree to the guilty or not guilty verdict.\nIn a civil case, the jury will consist of 6 jurors. Their verdict does not have to be unanimous. It\nonly requires 5 out of the 6 to find in favor of either the plaintiff or the defendant.\nARE THE COURTS AND COURT PERSONNEL THE SAME?\nGenerally speaking, except in certain specialized courts (like drug court), the courtrooms, the\ncourts, and the court personnel are the same for civil and criminal cases. Most judges handle both\ncriminal and civil cases. They use the same courtrooms for both types of cases. All courts have a\ncourt clerk. Most judges besides those in the Justice Courts have law clerks. They all have bailiffs\nand stenographers.\n\n18\n\n\x0cChapter 2 Appendix A: Civil and Criminal Case Differences\n\nCriminal and Civil Case Differences\nCriminal\nCivil\nWhat law applies?\nPenal Law, Various statutes, Various statutes, common\nCriminal Procedure Law\nlaw, Civil Practice Law and\nRules\n___________________________ _______________________ _______________________\nWho is the victim?\nA person or entity that is\nThe person or entity that is\nintentionally or reckless\nintentionally or negligently\nwronged harmed, injured,\nwronged, harmed, injured,\nkilled, or had their property killed, or had their property\nrights violated by the\nrights violated by the\ndefendant\ndefendant\nWho are the parties and who\nThe People of the State of\nPlaintiff\nbrings the case to court?\nNew York\nDefendant\nDefendant\nWho is seeking what?\nThe People of the State of\nPlaintiff-Verdict in their\nNew York-Punishment,\nfavor usually for money\nrehabilitation, deterrence\ndamages or injunctive relief\nDefendant-Dismissal, plea or specific performance\nbargain or not guilty verdict Defendant-Dismissal,\nsettlement or verdict in their\nfavor\nWhat is the standard of proof? Beyond a reasonable doubt Preponderance of the\nevidence\n__________________________ _______________________ _______________________\nWho has the burden of proof?\nThe People of the State of\nThe plaintiff\nNew York\nWhat do we call the attorneys in District Attorney/Prosecutor Plaintiff\xe2\x80\x99s attorney and\nthese cases?\nDefense Attorney, Public\nDefense attorney\nDefender, Assigned Counsel\nWho pays for the attorney?\nDistrict attorney-government. Parties pay for their own\nDefense Attorney-defendant attorneys, or obtain free or\nAssigned Counselreduced rates from pro bono\ngovernment\nattorneys and/or agencies\nPublic Defender-government\nWhat is the number of jurors?\nWhat verdict is required?\n\nSix for misdemeanor and\nSix\ntwelve for felony\nVerdict must be unanimous Verdict need not be\nunanimous. Only need 5 out\nof 6 to reach a verdict.\n\n19\n\n\x0cChapter 2 Appendix B. New York Consolidated/Unconsolidated Law\nIndex\nConsolidated Laws\nABP - Abandoned Property\nAGM - Agriculture & Markets\nABC - Alcoholic Beverage Control\nACG - Alternative County Government\nACA - Arts and Cultural Affairs\nBNK - Banking\nBVO - Benevolent Orders\nBSC - Business Corporation\nCAL - Canal\nCVP - Civil Practice Law & Rules\nCVR - Civil Rights\nCVS - Civil Service\nCCO - Cooperative Corporations\nCOR - Correction\nCNT - County\nCPL - Criminal Procedure\nDCD - Debtor & Creditor\nDOM - Domestic Relations\nEDN - Education\nELD - Elder\nELN - Election\nEDP - Eminent Domain Procedure\nEML - Employers\' Liability\nENG - Energy\nENV - Environmental Conservation\nEPT - Estates, Powers & Trusts\nEXC - Executive\nFIS - Financial Services Law\nGAS - General Associations\nGBS - General Business\nGCT - General City\nGCN - General Construction\nGMU - General Municipal\nGOB - General Obligations\nHAY - Highway\nIND - Indian\nISC - Insurance\nJUD - Judiciary\nLAB - Labor\nLEG - Legislative\nLIE - Lien\n20\n\n\x0cLLC - Limited Liability Company Law\nLFN - Local Finance\nMHY - Mental Hygiene\nMIL - Military\nMDW - Multiple Dwelling\nMRE - Multiple Residence\nMHR - Municipal Home Rule\nNAV - Navigation\nPPD - New York State Printing and Public Documents\nNPC - Not-For-Profit Corporation\nPAR - Parks, recreation and historic preservation\nPTR - Partnership\nPEN - Penal\nPEP - Personal Property\nPVH - Private Housing Finance\nPBA - Public Authorities\nPBB - Public Buildings\nPBH - Public Health\nPBG - Public Housing\nPBL - Public Lands\nPBO - Public Officers\nPBS - Public Service\nPML - Racing, Pari-Mutuel Wagering and Breeding Law\nRRD - Railroad\nRAT - Rapid Transit\nRPP - Real Property\nRPA - Real Property Actions & Proceedings\nRPT - Real Property Tax\nRCO - Religious Corporations\nRSS - Retirement & Social Security\nREL - Rural Electric Cooperative\nSCC - Second Class Cities\nSOS - Social Services\nSWC - Soil & Water Conservation Districts\nSTL - State\nSAP - State Administrative Procedure Act\nSTF - State Finance\nSTT - State Technology\nSLG - Statute of Local Governments\nTAX - Tax\nTWN - Town\nTRA - Transportation\nTCP - Transportation Corporations\nUCC - Uniform Commercial Code\nVAT - Vehicle & Traffic\nVIL - Village\n21\n\n\x0cVAW - Volunteer Ambulance Workers\' Benefit\nVOL - Volunteer Firefighters\' Benefit\nWKC - Workers\' Compensation\nUnconsolidated Laws\nBSW - Boxing, Sparring and Wrestling Ch. 912/20\nBAT - Bridges and Tunnels New York/New Jersey 47/31\nCCT - Cigarettes, Cigars, Tobacco 235/52\nTRY - City of Troy Issuance of Serial Bonds\nDEA - Defense Emergency Act 1951 784/51\nDPN - Development of Port of New York 43/22\nETP - Emergency Tenant Protection Act 576/74\nEHC - Expanded Health Care Coverage Act 703/88\nFEA - NYS Financial Emergency Act for the city of NY 868/75\nNYP - NYS Project Finance Agency Act7/75\nYFA - Yonkers financial emergency act 103/84\nYTS - Yonkers income tax surcharge\nFDC - Facilities Development Corporation Act 359/68\nGCM - General City Model 772/66\nLEH - Local Emergency Housing Rent Control Act 21/62\nERL - Emergency Housing Rent Control Law 274/46 337/61\nLSA - Lost and Strayed Animals 115/1894\nMCF - Medical Care Facilities Finance Agency 392/73\nNYW - N. Y. wine/grape 80/85\nHHC - New York City health and hospitals corporation act 1016/69\nPCM - Police Certain Municipalities 360/11\nPNY - Port of New York Authority 154/21\nPOA - Port of Albany 192/25\nPAB - Private Activity Bond 47/90\nRLA - Regulation of Lobbying Act 1040/81\nSNH - Special Needs Housing Act 261/88\nSCT - Suffolk County Tax Act\nTSF - Tobacco Settlement Financing Corporation Act\nUDG - Urban development guarantee fund of New York 175/68\nUDA - Urban Development Corporation Act 174/68\nUDR - Urban development research corporation act 173/68\nNNY - New, New York Bond Act 649/92\n\n22\n\n\x0cChapter 2 Appendix C: U.S. Code Index\nTitle 1 - General Provisions\nTitle 2 - The Congress\nTitle 3 - The President\nTitle 4 - Flag and Seal, Seat of Government, and the States\nTitle 5 - Government Organization and Employees\nAppendix\nTitle 6 - Domestic Security\nTitle 7 - Agriculture\nTitle 8 - Aliens and Nationality\nTitle 9 - Arbitration\nTitle 10 - Armed Forces\nTitle 11 - Bankruptcy\nAppendix\nTitle 12 - Banks and Banking\nTitle 13 - Census\nTitle 14 - Coast Guard\nTitle 15 - Commerce and Trade\nTitle 16 - Conservation\nTitle 17 - Copyrights\nTitle 18 - Crimes and Criminal Procedure\nAppendix\nTitle 19 - Customs Duties\nTitle 20 - Education\nTitle 21 - Food and Drugs\nTitle 22 - Foreign Relations and Intercourse\nTitle 23 - Highways\nTitle 24 - Hospitals and Asylums\nTitle 25 - Indians\nTitle 26 - Internal Revenue Code\nTitle 27 - Intoxicating Liquors\nTitle 28 - Judiciary and Judicial Procedure\nAppendix\nTitle 29 - Labor\nTitle 30 - Mineral Lands and Mining\nTitle 31 - Money and Finance\nTitle 32 - National Guard\nTitle 33 - Navigation and Navigable Waters\nTitle 34 - Crime Control and Law Enforcement\nTitle 35 - Patents\nTitle 36 - Patriotic and National Observances, Ceremonies, and Organizations\n23\n\n\x0cTitle 37 - Pay and Allowances of the Uniformed Services\nTitle 38 - Veterans\' Benefits\nTitle 39 - Postal Service\nTitle 40 - Public Buildings, Property, and Works\nTitle 41 - Public Contracts\nTitle 42 - The Public Health and Welfare\nTitle 43 - Public Lands\nTitle 44 - Public Printing and Documents\nTitle 45 - Railroads\nTitle 46 - Shipping\nTitle 47 - Telecommunications\nTitle 48 - Territories and Insular Possessions\nTitle 49 - Transportation\nTitle 50 - War and National Defense\nAppendix\nTitle 51 - National and Commercial Space Programs\nTitle 52 - Voting and Elections\nTitle 53 [Reserved]\nTitle 54 - National Park Service and Related Programs\n\nReferences:\nFind Laws, Legal Information, and Attorneys. (n.d.). Retrieved June 7, 2018, from\nhttps://www.findlaw.com/\nHome | Library of Congress. (n.d.). Retrieved June 9, 2018, from https://loc.gov/\nNew York State. (n.d.). New York State Unified Court System. Retrieved June 7, 2018, from\nhttp://nycourts.gov/\nOLRC Home. (n.d.). Retrieved June 3, 2018, from http://uscode.house.gov/\nPogue, D. L., Clifford, E., & Schwartz, A. L. (2009). Understanding New York Law, 2013-14.\nUpstate Legal Publishers\nThe New York State Senate. (2018, July 23). Retrieved June 8, 2018, from\nhttps://www.nysenate.gov/\nWelcome to LII. (n.d.). Retrieved June 3, 2018, from https://www.law.cornell.edu/\n\n24\n\n\x0cCHAPTER 3\nNEW YORK STATE AND FEDERAL COURT STRUCTURE AND SOURCES OF\nLAW\nPart I: New York and Federal Court Structure\nINTRODUCTION\nGenerally, there are two types of courts \xe2\x80\x93 trial courts and appellate courts.\n\xe2\x80\xa2 Trial Courts hear testimony from witnesses, and the judge or jury decides the outcome of\na case.\n\xe2\x80\xa2 Appellate Courts determine appeals from lower courts when one of the parties does not\nfeel they received justice in the court below. No witnesses are presented in an appellate\ncourt. There is no jury. Appellate courts consist of a panel of judges that reach a decision\nbased upon a review of the trial transcript and evidence presented during the earlier trial,\nas well as written and oral argument presented by attorneys for the parties.\nHOW IS THE NEW YORK COURT SYSTEM STRUCTURED?\n\xe2\x80\xa2 The New York State Court System is a three-tiered court system.\n1. Cases start in a trial court.\n2. If a trial court judgment is appealed, the appeal is heard by an intermediate appellate\ncourt.\n3. If the decision of the intermediate trial court is appealed, and that appeal is granted,\nthe appeal is heard by the highest court in NYS, the New York State Court of\nAppeals.\nNEW YORK STATE TRIAL COURTS*\n*Source: The Courts, (2016), Retrieved July 27, 2018 from https://www.nycourts.gov/courts\nTown and Village Courts\nThere are nearly 1300 Town and Village Courts with approximately 2,200 Town and Village\njudges. These courts are often referred to collectively as the Justice Courts. They are located in\nNYS\xe2\x80\x99s towns and villages. These courts handle close to 2 million cases a year.\nCivil Jurisdiction: The Town and Village Courts hear actions seeking monetary awards up to\n$3,000. They also hear small claims proceedings for awards up to $3,000. These courts handle\n\n25\n\n\x0clandlord/tenant matters that may result in evictions, as well as money judgments for back rent and\ndamages.\nTown and Village Courts small claims proceedings are intended to provide a low-cost, simplified\nand informal procedure for individuals to resolve disputes involving limited monetary claims.\nOften, the parties to these proceedings do not use attorneys.\nCriminal Jurisdiction: Town and Village courts are authorized to handle matters involving the\nprosecution of misdemeanors and violations that are committed within their geographic borders.\nThese courts also conduct arraignments and preliminary hearings in felony matters. In addition,\nthese courts hear Vehicle and Traffic Law misdemeanors and traffic infractions.\nIn cases involving domestic violence, the judges are authorized to issue orders of protection.\nCity Court\nCivil Jurisdiction: City Courts hear civil matters for monetary disputes up to $15,000. City Courts\nhear small claims proceedings for awards up to $5,000.\nCriminal Jurisdiction: City Courts are authorized to handle matters involving the prosecution of\nmisdemeanors and violations that are committed within their geographic borders.\nThese courts also conduct arraignments and preliminary hearings in felony matters. In addition,\nthese courts hear Vehicle and Traffic Law misdemeanors and traffic infractions.\nIn cases involving domestic violence, the judges are authorized to issue orders of protection.\nCounty Court\nThe County Court is established in each county outside New York City.\nCivil Jurisdiction: The County Court also has limited jurisdiction in civil cases involving amounts\nup to $25,000.\nCriminal Jurisdiction: County Court is authorized to handle the prosecution of all crimes\ncommitted within the county. County Courts generally handle felony cases. (Crimes are\nwrongdoings as described in the laws of NYS which are punishable by a fine, incarceration, or\nboth.)\nCounty Courts are also authorized to act as intermediate appellate courts, hearing appeals from the\nCity Courts and the Town and Village Courts.\nDistrict Court\nDistrict Courts are located in Nassau County and parts of Suffolk County.\nCivil Jurisdiction: District Courts have civil jurisdiction over claims up to $15,000 and small\nclaims matters not in excess of $5,000.\nCriminal Jurisdiction: District Courts are authorized to handle matters involving the prosecution\nof misdemeanors and violations that are committed within their geographic borders.\nThese courts also conduct arraignments and preliminary hearings in felony matters.\nSurrogate\xe2\x80\x99s Court\nEach county has a Surrogate\xe2\x80\x99s Court. Surrogate\'s Court hears cases involving the probate of wills,\nand the administration of estates of decedents in their county. This court also handles adoptions.\n26\n\n\x0cFamily Court\nThe Family Court has jurisdiction over matters involving families and children. Family Court\xe2\x80\x99s\njurisdiction includes: Adoption; Guardianship; Foster Care Approval and Review; Delinquency;\nPersons in Need of Supervision; Family Offense (domestic violence); Child Protective\nProceedings (abuse and neglect); Termination of Parental Rights; Custody and Visitation; and\nSupport. The Family Court cannot grant a divorce; only Supreme Court can grant a divorce.\nNew York State Supreme Court\nIn NYS, the Supreme Court is not the highest court in NYS, it is a trial court. This is unique to\nNew York State. Most states call their highest courts the Supreme Court, with the exception of\nNew York State, the State of Maryland, and the District of Columbia. While the NYS Supreme\nCourt has unlimited, original jurisdiction, this court generally hears cases that are outside of the\njurisdiction of other courts.\nCivil Jurisdiction: This court hears matters beyond the monetary limits of the lower courts. This\ncourt has exclusive jurisdiction over divorce, separation, and annulment proceedings. This court\nalso has jurisdiction over matters such as mortgage foreclosures and injunctions.\nCriminal Jurisdiction: Supreme Court is authorized to handle the prosecution of all crimes\ncommitted within their jurisdiction. However, they generally handle felony cases.\nCivil Court of the City of New York\nCivil Jurisdiction: The Civil Court of the City of New York hears civil cases involving monetary\namounts up to $25,000, and other civil matters referred to it by the Supreme Court. This court also\nhears small claims proceedings up to $5,000. In addition, this court also has a housing part for\nlandlord-tenant matters and housing code violations. This court has no criminal jurisdiction.\nCriminal Court of the City of New York\nCriminal Jurisdiction: The Criminal Court of the City of New York is authorized to handle matters\ninvolving the prosecution of misdemeanors and violations that are committed within its geographic\nborders. These courts also conduct arraignments and preliminary hearings in felony matters. This\ncourt has no civil jurisdiction.\nCourt of Claims\nThe Court of Claims has jurisdiction over the entire State of New York. This court does not have\njurisdiction over any individuals, including NYS employees. However, some claims against\nindividuals and NYS employees may be maintained against NYS based on wrongful conduct of\nemployees for which NYS is responsible for.\nThe Court of Claims also has jurisdiction over the following public authorities which can be sued\nunder their own names. These include the New York State Thruway Authority, the City\nUniversity of New York, the Roswell Park Cancer Institute Corporation, the Olympic\nRegional Development Authority, and the Power Authority of the State of New York.\nThe Court of Claims has no jurisdiction over lawsuits involving county, town, city, or village\ngovernments, agencies, or employees. Litigation against these entities is governed by the\nprovisions of the General Municipal Law. These entities, and other public authorities not\n27\n\n\x0creferenced above, are sued in Supreme Court pursuant to the procedure set forth in the General\nMunicipal Law.\nNEW YORK STATE APPELLATE COURTS*\n*Source: The Courts, (2016), Retrieved July 27, 2018 from https://www.nycourts.gov/courts\n\xe2\x80\xa2\n\nAfter a trial, if a plaintiff or defendant feels he/she did not receive justice, he/she has the\nright to an appeal. The exception to this right is that the prosecutor in a criminal case cannot\nappeal a not guilty verdict, or its equivalent, since this would create double jeopardy, which\nis a violation of both the NYS and United States Constitutions.\n\n\xe2\x80\xa2\n\nThe NYS Appellate Courts hear and determine appeals from the decisions of the trial\ncourts. The NYS Appellate Courts are the Court of Appeals, which is NYS\xe2\x80\x99s highest Court,\nthe Appellate Divisions of the Supreme Court, the Appellate Terms of the Supreme Court,\nand the County Courts acting as Appellate Courts in the Third and Fourth Judicial\nDepartments.\n\n\xe2\x80\xa2\n\nThere are four Appellate Divisions of the Supreme Court called the 1st, 2nd, 3rd, and 4th\nDepartments. There is one Appellate Division of the Supreme Court in each of the State\'s\nfour Judicial Departments. These Courts resolve appeals from judgments or orders of the\ntrial courts of original jurisdiction in civil and criminal cases, and review civil appeals\ntaken from the Appellate Terms, and the County Courts, acting as appellate courts.\n\n\xe2\x80\xa2\n\nThere are two Appellate Terms of the Supreme Court, one in each of the in the First and\nSecond Departments. These courts hear appeals from civil and criminal cases originating\nin the Civil and Criminal Courts of the City of New York. The Second Department\xe2\x80\x99s\nAppellate Terms also have jurisdiction over appeals from civil and criminal cases\noriginating in District, City, Town, and Village Courts, as well as non-felony appeals\nfrom the County Court.\n\n\xe2\x80\xa2\n\nWhile the County Courts in the Third and Fourth Departments are primarily trial courts,\nthey also hear appeals from cases originating in the City, Town, and Village Courts.\n\n\xe2\x80\xa2\n\nThe New York Court of Appeals is the highest court in New York State. It sits atop NYS\xe2\x80\x99s\njudicial system. Note that federal appellate courts are also called the U.S. Circuit Court of\nAppeals.\n\n\xe2\x80\xa2\n\nThe granting of an appeal to the NYS Court of Appeals is generally at the discretion of the\nCourt. An appeal argued before the New York Court of Appeals has usually been heard\nby two lower courts (a trial court and the Appellate Division).\n\n\xe2\x80\xa2\n\nThe New York Court of Appeals is composed of a Chief Judge and six Associate Judges.\nThey are each appointed to a 14-year term. They have a mandatory retirement age of 70\nyears of age.\n28\n\n\x0c\xe2\x80\xa2\n\xe2\x80\xa2\n\nExcept in cases involving a Federal question, where the Supreme Court of the United States\nhas the last word, the Court of Appeals makes the final statement of the law in New York\nState.\nIn recent years, the Court of Appeals has written opinions in about 175 cases annually, in\naddition to deciding approximately 1,200 motions for leave to appeal in civil cases and\n2,800 criminal leave applications.\n\nHOW IS THE FEDERAL COURT SYSTEM STRUCTURED?\n\xe2\x80\xa2 The Federal Court system is a three-tiered court system.\n1. Cases start in a trial court.\n2. If a trial court judgment is appealed, the appeal is heard by an intermediate appellate\ncourt.\n3. If the decision of the intermediate trial court is appealed, and that appeal is granted,\nthe appeal is heard by the highest court in the United States, the U.S. Supreme Court\nFEDERAL TRIAL COURTS*\n*Source: Court Role and Structure, Retrieved July 27, 2018, from\nhttp://www.uscourts.gov/about-federal-courts/court-role-and-structure\nDistrict Courts\nIn the federal court system, there are 94 district trial courts called U.S. District Courts across the\nUnited States. These courts have jurisdiction over both civil and criminal federal cases. District\nCourt judges have lifetime appointments pursuant to the U.S. Constitution. Magistrate judges assist\ndistrict judges in preparing cases for trial. They may also conduct trials in misdemeanor cases.\nThere is at least one district court in each state, and the District of Columbia. Each district also\nincludes a U.S. bankruptcy court as a unit of the district court. Four U.S. territories have U.S.\ndistrict courts: Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands.\nThere are also two special trial courts: The Court of International Trade addresses cases involving\ninternational trade and customs laws, while the U.S. Court of Federal Claims deals with most\nclaims for money damages against the U.S. government.\nBankruptcy Courts\nFederal courts have exclusive jurisdiction over bankruptcy cases involving personal, business, or\nfarm bankruptcy. All bankruptcy cases are federal. There are no state bankruptcy courts.\nFEDERAL APPELLATE COURTS*\n*Source: Court Role and Structure, Retrieved July 27, 2018, from\nhttp://www.uscourts.gov/about-federal-courts/court-role-and-structure\nU.S. Court of Appeals\n29\n\n\x0cThere are 13 appellate courts called the U.S. Court of Appeals that sit below the U.S. Supreme\nCourt. The 94 federal judicial districts are organized into 12 regional circuits, each of which has a\nU.S. Court of Appeals. New York State is in the U.S. Court of Appeals Second Circuit. The Second\nCircuit also includes the States of Vermont and Connecticut.\nThe U.S. Court of Appeals hears challenges to district court decisions located within its circuit, as\nwell as appeals from decisions of federal administrative agencies. Appeals are heard by a panel of\nthree judges from a total of 13 available active judges. An appeal heard en banc means all available\njudges heard the appeal. Appellate courts do not use a jury. Any plaintiff or defendant that feels\nthey did not receive justice at their trial has the right to an appeal. The exception is that the\nprosecution in a criminal case cannot appeal a not guilty verdict or its equivalent because this\nwould create double jeopardy, which is a violation of the U.S. Constitution.\nIn addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals\nin specialized cases such as patent laws, and cases decided by the U.S. Court of International\nTrade and the U.S. Court of Federal Claims.\nBankruptcy Appellate Panels\nBankruptcy Appellate Panels (BAPs) are 3-judge panels authorized to hear appeals of bankruptcy\ncourt decisions. BAPs are a unit of the federal courts of appeals established by that circuit. Only\nfive circuits have established BAPs. They are the First Circuit, Sixth Circuit, Eighth Circuit, Ninth\nCircuit, and Tenth Circuit.\nArticle I Courts\nThe U.S. Congress created several Article I legislative courts that do not have full judicial power.\nThe judicial power of these Article I courts is the authority to be the final decider in all questions\nof Constitutional law, all questions of federal law, and to hear claims at the core of habeas corpus\nissues. These Article I Courts are:\nU.S. Tax Court\nThe United States Tax Court is a court of record established by Congress under Article I\nof the U.S. Constitution. When the Commissioner of Internal Revenue has determined a\ntax deficiency, the taxpayer may dispute the deficiency in the Tax Court before paying any\ndisputed amount. This court also has jurisdiction over other federal tax matters.\nU.S. Court of Appeals for the Armed Forces\nThe United States Court of Appeals for the Armed Forces exercises worldwide appellate\njurisdiction over members of the armed forces on active duty, and other persons subject to\nthe Uniform Code of Military Justice. The Court is composed of five civilian judges\nappointed for 15-year terms by the President. Decisions by the Court are subject to direct\nreview by the Supreme Court of the United States.\nU.S. Court of Appeals for Veterans Claims\nThe United States Court of Appeals for Veterans Claims has exclusive jurisdiction over\ndecisions of the Board of Veterans Appeals. This court reviews Board decisions appealed\nby claimants who believe the Board\xe2\x80\x99s decision was improper or incorrect.\n\n30\n\n\x0cUnited States Supreme Court\nThe Supreme Court is the highest court in the United States. Article III of the U.S. Constitution\ncreated the Supreme Court and authorized Congress to pass laws establishing a system of lower\ncourts. In the federal court system\xe2\x80\x99s present form, 94 district level trial courts and 13 courts of\nappeals sit below the Supreme Court. The U.S. Supreme Court is the final arbiter of federal\nconstitutional questions.\nThe United States Supreme Court has the absolute discretion to grant an appeal. It does so by\ngranting what is called a writ of certiorari. A writ of certiorari orders a lower court to deliver its\nrecord in a case, so the higher court may review it. The U.S. Supreme Court decides to grant a writ\nof certiorari by the \xe2\x80\x9crule of four\xe2\x80\x9d. This means that when reviewing the thousands of requests for\nappeals, at least four of the nine Supreme Court Justices must agree to grant the appeal. The\nSupreme Court agrees to hear about 100-150 of the more than 7,000 cases that it is asked to review\neach year.\n\nPart II: Sources of Law\nINTRODUCTION\nThere are numerous sources of law that we as citizens need to understand and be aware of. All\nthese various sources of law have an impact on our daily lives. Under our legal system, the\nfollowing are the sources of law.\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nUnited States Constitution\nNew York Constitution\nStatutes (Federal, State, and Local)\nAdministrative Rules (Federal and State)\nCommon Law (Which includes case law.)\n\nHAT IS THE UNITED STATES CONSTITUTION?\nThe U.S. Constitution is a written body of laws that was ratified in 1788. It includes just 27\namendments since its inception over 200 years ago. It is the foundation for our federal\ngovernment and all federal laws. It is written broadly and often needs interpretation by our\nfederal courts to determine what it actually says and means. The US Constitution has had,\nand will continue to have, a huge impact on civil and criminal law, and society in general.\nWHAT IS THE NEW YORK STATE CONSTITUTION?\nThe first New York Constitution was adopted by the Convention of Representatives of the State\nof New York in 1777. This was eleven years before the United States Constitution was ratified.\nThe second New York State Constitution was adopted in 1821, a third in 1846, the fourth in 1894,\nand the fifth and current New York Constitution in 1938.\n\n31\n\n\x0cIt is important to understand that the while there are many similarities between the United States\nConstitution and the New York State Constitution, there are important distinctions. First, the\nfederal Constitution establishes the federal government structure. It also establishes the rights we\nhave as United States citizens. The federal Constitution establishes the low bar, or minimum rights,\nwe have as citizens that no state law or constitution can go below.\nThe New York Constitution establishes the New York State government. It also establishes the\nrights we have as New York State citizens that may be greater than those established under the\nfederal Constitution, but not less. In other words, states can give you equal or more rights than the\nfederal government, just not less. New York frequently offers its citizens more rights\nFor example:\nNew York\xe2\x80\x99s Constitution guarantees:\n\xe2\x80\xa2 The right of workers to organize and bargain collectively.\n\xe2\x80\xa2 The right of workers to receive workers\xe2\x80\x99 compensation.\n\xe2\x80\xa2 The right to a free public education.\n\xe2\x80\xa2 Criminal suspects have more rights regarding defense counsel.\n\xe2\x80\xa2 Criminal suspects have expanded Miranda rights.\n\xe2\x80\xa2 Criminal suspects have more protections regarding search and seizure.\nWHAT ARE STATUTES?\nStatutes are written laws created by an elected legislature and signed into law by the respective\nexecutive. If the US Congress enacts legislation, we call it a federal statute. This means the House\nof Representatives and the U.S. Senate have agreed on legislation that was signed into law by the\nPresident of the United States.\nIf the New York State legislature enacts legislation we called it a New York statute. This means\nthat the Assembly (which is similar to the House of Representatives) and the New York Senate\n(which is similar to the U.S. Senate) have agreed on legislation that was signed by the New York\nGovernor (which is similar to the President).\nThe authority for Congress\xe2\x80\x99 power to pass laws is written in Article II of the federal Constitution.\nNew York State\xe2\x80\x99s Constitution has a similar provision applying to the New York Senate and\nAssembly in Article III of the New York Constitution. Examples of federal laws include:\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nTitle VII of the Civil Rights Act of 1964\nThe Affordable Care Act\nTax Cut and Jobs Act of 2017\nThe USA Patriot Act\n\nWHAT ARE LOCAL ORDINANCES AND CODES?\nLocal laws passed by city, town, and village boards are called ordinances or codes. These laws\nimpact our everyday life because they affect the place we usually spend the most time, where we\nlive. These local laws are usually put together for particular purposes such as zoning and housing.\nExamples of local ordinances and codes include:\n\n32\n\n\x0c\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nStreet Parking\nNoise Restrictions\nBuilding Permits\nLeash Laws and Pet Licensing\n\nWHAT IS ADMINISTRATIVE LAW?\nSome statutes may require more specific rules on how they will be administered. These rules are\nwritten by the administrative agencies that enforce these statutes. For example, the NYS\nDepartment of Environmental Conservation, also known as the DEC, writes the rules, administers,\nand enforces the New York State Environmental Conservation Law.\nAt a federal level, the Environmental Protection Agency, also known as the EPA, writes the rules,\nadministers, and enforces federal environmental laws like the Clean Air Act. The Internal Revenue\nService rights the rules, administers, and enforces the Tax Cut and Jobs Act of 2017.\nThe various administrative agencies are under the control of the executive branch, which means\nthe President at the federal level and the Governor at the state level.\nWHAT IS COMMON LAW?\nCommon law is also known as judicial precedent, or case law. Common is derived from the period\nafter the Norman Conquest of 1066 in England, where the law was developed by judges and their\ndecisions, as opposed to legislatures and their statutes. That tradition was carried over to our courts\nand laws by our founding fathers. It is therefore that body of law that is derived from decisions of\ncourts which creates judicial precedent. In situations and cases where parties disagree on what the\nlaw is, courts will look to past court decisions on a same or similar matter and use that decision as\nprecedent in making its decision.\nIn some situations, precedent is binding, while in others it may only be persuasive depending on\nthe court making the precedent decision. For example, if an NY Appellate Court in the 1st\nDepartment makes a decision and a case in the 4th Department arises that is similar, the 1st\nDepartment\xe2\x80\x99s decision is persuasive precedent, but not binding on the 4th Department judges. On\nthe other hand, if the New York Court of Appeals makes a decision on a same or similar issue, its\ndecision is binding precedent on all courts in NYS.\nThe difference is that the 1st and 4th Department courts are equal in stature, while the Court of\nAppeals is the highest court in the state. Using this line of logic, all trial courts in the 4th Department\nwill follow their department\xe2\x80\x99s precedent, while those trial courts in the 1st Department are bound\nto follow their 1st Department\xe2\x80\x99s rulings.\nJudicial precedent makes the law predictable and more likely to be fair. If you can depend on the\ncourt that you are before to interpret the law the same as that court or previous courts have in the\npast, that use of judicial precedent makes it much more likely that your pursuit of justice will be\nfair. It also allows those who give legal advice to do so with more confidence and credibility,\nwhich in turn gives you the ability to tailor your personal or business actions to fit within the law.\nCommon law is an extremely important source of law. Without judicial precedent, the law and life\nas we know it in the Unites States would most likely be much different.\n33\n\n\x0cAppendix A: New York State Judicial Departments*\nJudicial Departments\nFirst\n\nSecond\n\nThird\n\nFourth\n\nBronx\nNY County\n\nDutchess\nKings\nNassau\nOrange\nPutnam\nQueens\nRichmond\nRockland\nSuffolk\nWestchester\n\nAlbany\nBroome\nChemung\nChenango\nClinton\nColumbia\nCortland\nDelaware\nEssex\nFranklin\nFulton\nGreene\nHamilton\nMadison\nMontgomery\nOtsego\nRensselaer\nSt. Lawrence\nSaratoga\nSchenectady\nSchoharie\nSchuyler\nSullivan\nTioga\nTompkins\nUlster\nWarren\nWashington\n\nAllegany\nCattaraugus\nCayuga\nChautauqua\nErie\nGenesee\nHerkimer\nJefferson\nLewis\nLivingston\nMonroe\nNiagara\nOneida\nOnondaga\nOntario\nOrleans\nOswego\nSeneca\nSteuben\nWayne\nWyoming\nYates\n\n*Source: Appellate Divisions, (2013), Retrieved July 27, 2018 from\nhttps://www.nycourts.gov/courts/appellatedivisions.shtml\n\n34\n\n\x0cAppendix B: Outline of the New York Court System*\n\n*Source: Structure of the Courts (2013) Retrieved July 27, 2018 from\nhttps://www.nycourts.gov/courts/structure.shtml\n\n35\n\n\x0cAppendix C: United States Federal Courts Circuits Map*\n\n*Source: Court Role and Structure, Retrieved July 27, 2018, from\nhttp://www.uscourts.gov/about-federal-courts/court-role-and-structure\n\n36\n\n\x0cAppendix D: Justices of the United States Supreme Court Biographies*\n\nJohn G. Roberts, Jr., Chief Justice of the United States was born in Buffalo, New York, January\n27, 1955. He married Jane Marie Sullivan in 1996 and they have two children, Josephine and Jack.\nHe received an A.B. from Harvard College in 1976 and a J.D. from Harvard Law School in 1979.\nHe served as a law clerk for Judge Henry J. Friendly of the United States Court of Appeals for the\nSecond Circuit from 1979\xe2\x80\x931980, and as a law clerk for then-Associate Justice William H.\nRehnquist of the Supreme Court of the United States during the 1980 Term. He was Special\nAssistant to the Attorney General, U.S. Department of Justice from 1981\xe2\x80\x931982, Associate Counsel\nto President Ronald Reagan, White House Counsel\xe2\x80\x99s Office from 1982\xe2\x80\x931986, and Principal\nDeputy Solicitor General, U.S. Department of Justice from 1989\xe2\x80\x931993. From 1986\xe2\x80\x931989 and\n1993\xe2\x80\x932003, he practiced law in Washington, D.C. He was appointed to the United States Court of\n\n37\n\n\x0cAppeals for the District of Columbia Circuit in 2003. President George W. Bush nominated him\nas Chief Justice of the United States, and he took his seat September 29, 2005.\n\nAnthony M. Kennedy, Associate Justice, was born in Sacramento, California, July 23, 1936. He\nmarried Mary Davis and has three children. He received his B.A. from Stanford University and\nthe London School of Economics, and his LL.B. from Harvard Law School. He was in private\npractice in San Francisco, California from 1961\xe2\x80\x931963, as well as in Sacramento, California from\n1963\xe2\x80\x931975. From 1965 to 1988, he was a Professor of Constitutional Law at the McGeorge School\nof Law, University of the Pacific. He has served in numerous positions during his career, including\na member of the California Army National Guard in 1961, the board of the Federal Judicial Center\nfrom 1987\xe2\x80\x931988, and two committees of the Judicial Conference of the United States: the\nAdvisory Panel on Financial Disclosure Reports and Judicial Activities, subsequently renamed the\nAdvisory Committee on Codes of Conduct, from 1979\xe2\x80\x931987, and the Committee on Pacific\nTerritories from 1979\xe2\x80\x931990, which he chaired from 1982\xe2\x80\x931990. He was appointed to the United\nStates Court of Appeals for the Ninth Circuit in 1975. President Reagan nominated him as an\nAssociate Justice of the Supreme Court, and he took his seat February 18, 1988.\n\nClarence Thomas, Associate Justice, was born in the Pinpoint community near Savannah,\nGeorgia on June 23, 1948. He attended Conception Seminary from 1967-1968 and received an\nA.B., cum laude, from Holy Cross College in 1971 and a J.D. from Yale Law School in 1974. He\nwas admitted to law practice in Missouri in 1974, and served as an Assistant Attorney General of\nMissouri, 1974-1977; an attorney with the Monsanto Company, 1977-1979; and Legislative\nAssistant to Senator John Danforth, 1979-1981. From 1981\xe2\x80\x931982 he served as Assistant Secretary\nfor Civil Rights, U.S. Department of Education, and as Chairman of the U.S. Equal Employment\nOpportunity Commission, 1982-1990. From 1990\xe2\x80\x931991, he served as a Judge on the United States\nCourt of Appeals for the District of Columbia Circuit. President Bush nominated him as an\n38\n\n\x0cAssociate Justice of the Supreme Court and he took his seat October 23, 1991. He married Virginia\nLamp on May 30, 1987 and has one child, Jamal Adeen, by a previous marriage.\n\nRuth Bader Ginsburg, Associate Justice, was born in Brooklyn, New York, March 15, 1933.\nShe married Martin D. Ginsburg in 1954, and has a daughter, Jane, and a son, James. She received\nher B.A. from Cornell University, attended Harvard Law School, and received her LL.B. from\nColumbia Law School. She served as a law clerk to the Honorable Edmund L. Palmieri, Judge of\nthe United States District Court for the Southern District of New York, from 1959\xe2\x80\x931961. From\n1961\xe2\x80\x931963, she was a research associate and then associate director of the Columbia Law School\nProject on International Procedure. She was a Professor of Law at Rutgers University School of\nLaw from 1963\xe2\x80\x931972, and Columbia Law School from 1972\xe2\x80\x931980, and a fellow at the Center for\nAdvanced Study in the Behavioral Sciences in Stanford, California from 1977\xe2\x80\x931978. In 1971, she\nwas instrumental in launching the Women\xe2\x80\x99s Rights Project of the American Civil Liberties Union\nand served as the ACLU\xe2\x80\x99s General Counsel from 1973\xe2\x80\x931980, and on the National Board of\nDirectors from 1974\xe2\x80\x931980. She was appointed a Judge of the United States Court of Appeals for\nthe District of Columbia Circuit in 1980. President Clinton nominated her as an Associate Justice\nof\nthe\nSupreme\nCourt,\nand\nshe\ntook\nher\nseat\nAugust\n10,\n1993.\n\nStephen G. Breyer, Associate Justice, was born in San Francisco, California, August 15, 1938.\nHe married Joanna Hare in 1967, and has three children - Chloe, Nell, and Michael. He received\nan A.B. from Stanford University, a B.A. from Magdalen College, Oxford, and an LL.B. from\nHarvard Law School. He served as a law clerk to Justice Arthur Goldberg of the Supreme Court\nof the United States during the 1964 Term, as a Special Assistant to the Assistant U.S. Attorney\nGeneral for Antitrust, 1965\xe2\x80\x931967, as an Assistant Special Prosecutor of the Watergate Special\nProsecution Force, 1973, as Special Counsel of the U.S. Senate Judiciary Committee, 1974\xe2\x80\x931975,\n39\n\n\x0cand as Chief Counsel of the committee, 1979\xe2\x80\x931980. He was an Assistant Professor, Professor of\nLaw, Lecturer at Harvard Law School, 1967\xe2\x80\x931994, a Professor at the Harvard University Kennedy\nSchool of Government, 1977\xe2\x80\x931980, and a Visiting Professor at the College of Law, Sydney,\nAustralia and at the University of Rome. From 1980\xe2\x80\x931990, he served as a Judge of the United\nStates Court of Appeals for the First Circuit, and as its Chief Judge, 1990\xe2\x80\x931994. He also served as\na member of the Judicial Conference of the United States, 1990\xe2\x80\x931994, and of the United States\nSentencing Commission, 1985\xe2\x80\x931989. President Clinton nominated him as an Associate Justice of\nthe Supreme Court, and he took his seat August 3, 1994.\n\nSamuel A. Alito, Jr., Associate Justice was born in Trenton, New Jersey, April 1, 1950. He\nmarried Martha-Ann Bomgardner in 1985 and has two children - Philip and Laura. He served as a\nlaw clerk for Leonard I. Garth of the United States Court of Appeals for the Third Circuit from\n1976\xe2\x80\x931977. He was Assistant U.S. Attorney, District of New Jersey, 1977\xe2\x80\x931981, Assistant to the\nSolicitor General, U.S. Department of Justice, 1981\xe2\x80\x931985, Deputy Assistant Attorney General,\nU.S. Department of Justice, 1985\xe2\x80\x931987, and U.S. Attorney, District of New Jersey, 1987\xe2\x80\x931990.\nHe was appointed to the United States Court of Appeals for the Third Circuit in 1990. President\nGeorge W. Bush nominated him as an Associate Justice of the Supreme Court, and he took his\nseat January 31, 2006.\n\nSonia Sotomayor, Associate Justice, was born in Bronx, New York, on June 25, 1954. She earned\na B.A. in 1976 from Princeton University, graduating summa cum laude and receiving the\nuniversity\xe2\x80\x99s highest academic honor. In 1979, she earned a J.D. from Yale Law School where she\nserved as an editor of the Yale Law Journal. She served as Assistant District Attorney in the New\nYork County District Attorney\xe2\x80\x99s Office from 1979\xe2\x80\x931984. She then litigated international\ncommercial matters in New York City at Pavia & Harcourt, where she served as an associate, and\nthen partner from 1984\xe2\x80\x931992. In 1991, President George H.W. Bush nominated her to the U.S.\n40\n\n\x0cDistrict Court, Southern District of New York, and she served in that role from 1992\xe2\x80\x931998. She\nserved as a judge on the United States Court of Appeals for the Second Circuit from 1998\xe2\x80\x932009.\nPresident Barack Obama nominated her as an Associate Justice of the Supreme Court on May 26,\n2009, and she assumed this role August 8, 2009.\n\nElena Kagan, Associate Justice, was born in New York, New York, on April 28, 1960. She\nreceived an A.B. from Princeton in 1981, an M.Phil. from Oxford in 1983, and a J.D. from Harvard\nLaw School in 1986. She clerked for Judge Abner Mikva of the U.S. Court of Appeals for the D.C.\nCircuit from 1986-1987, and for Justice Thurgood Marshall of the U.S. Supreme Court during the\n1987 Term. After briefly practicing law at a Washington, D.C. law firm, she became a law\nprofessor, first at the University of Chicago Law School, and later at Harvard Law School. She\nalso served for four years in the Clinton Administration, as Associate Counsel to the President and\nthen as Deputy Assistant to the President for Domestic Policy. Between 2003 and 2009, she served\nas the Dean of Harvard Law School. In 2009, President Obama nominated her as the Solicitor\nGeneral of the United States. A year later, the President nominated her as an Associate Justice of\nthe Supreme Court on May 10, 2010. She took her seat on August 7, 2010.\n\nNeil M. Gorsuch, Associate Justice, was born in Denver, Colorado, August 29, 1967. He and his\nwife Louise have two daughters. He received a B.A. from Columbia University, a J.D. from\nHarvard Law School, and a D.Phil. from Oxford University. He served as a law clerk to Judge\nDavid B. Sentelle of the United States Court of Appeals for the District of Columbia Circuit, and\nas a law clerk to Justice Byron White and Justice Anthony M. Kennedy of the Supreme Court of\nthe United States. From 1995\xe2\x80\x932005, he was in private practice, and from 2005\xe2\x80\x932006 he was\nPrincipal Deputy Associate Attorney General at the U.S. Department of Justice. He was appointed\nto the United States Court of Appeals for the Tenth Circuit in 2006. He served on the Standing\nCommittee on Rules for Practice and Procedure of the U.S. Judicial Conference, and as chairman\n41\n\n\x0cof the Advisory Committee on Rules of Appellate Procedure. He taught at the University of\nColorado Law School. President Donald J. Trump nominated him as an Associate Justice of the\nSupreme Court, and he took his seat on April 10, 2017.\n*Source: Justices, Retrieved July 27, 2018 from\nhttps://www.supremecourt.gov/about/justices.aspx\n\n42\n\n\x0cAppendix F: Common Legal Words and Terms\nThe following are some common legal words and terms used by attorneys and courts in New\nYork State.\nAction, Case, Suit, and Lawsuit: These words mean the same thing. They refer to a\nlegal dispute, issue, or claim.\nAnswer: A legal document in which the person against whom an action is brought\nanswers the claims of the person bringing the lawsuit.\nAppearance Ticket: In a criminal matter, an appearance ticket is served ordering a\nperson to appear in court for a lesser criminal offense or traffic violation instead of\narresting that person. This is also called a summons.\nArgument: An attorney\xe2\x80\x99s presentation of evidence; summation at the end of a trial or\nexplanation before an appellate court.\nBill of Particulars: A part of the discovery process of a lawsuit to obtain more detailed\ninformation about the case.\nCharge or instruction to jury: After the attorneys are done presenting their evidence\nand summations, the judge gives the jurors the law relating to the issues and the evidence\npresented.\nCivil: The rights and remedies of private persons that have been wronged and harmed\nin a non-criminal manner.\nClaim: What a person alleges that another person did wrong.\nCourt Clerk: In the courtroom, the court clerk sits in front of the judge, is an officer\nof the court, administers the oath to jurors and to witnesses before they testify, and\nrecords orders made by the court during the trial and verdict.\nClosing argument: The final statements by the attorneys to the jury or court\nsummarizing the evidence they think they have established, and the evidence that they\nthink the other side has failed to establish. This is also called the summation. In New\nYork criminal cases, the defense goes first with his closing argument, and then the\nprosecutor closes. In New York civil cases, the plaintiff closes after the defense.\nCommon law: A body of principles and rules which derive their authority from usage\nand customs built up over many years, particularly from the unwritten law of England.\nIt is also that of a body of law that develops from judicial decisions as distinct from\nstatutory law.\nComplaint: A legal document in which the person bringing the lawsuit states allegations\nor claims against the other party.\nCounty Clerk: The County Clerk is a public office where legal documents are placed,\nkept, recorded, and placed on record.\nCourt: A branch of the government organized to administer justice. In includes both\njudges and juries.\nCourt Attendant: Also known as a bailiff, court attendants have the charge of keeping\norder in a courtroom, the custody of the jury, the custody of prisoners while in court,\n43\n\n\x0cand providing courtroom security.\nCross-Examination: The examination of a witness by the party opposed to the one who\nproduced the witness. The purpose is to test the veracity of evidence given by the witness\nduring direct examination.\nCrime: A wrongdoing described in the laws of NYS and punishable by a fine,\nincarceration, or both.\nDefendant: A person or entity against whom a lawsuit has been started. In some legal\nproceedings they are called a respondent. In a criminal prosecution, this is the person\nwho is charged with committing a crime.\nDirect Examination: The first line of questioning of a witness by the party producing\nthe witness.\nEvidence: Proof legally presented at trial through witnesses, photographs, documents,\nexhibits, physical objects, videos, or other legal means to establish a particular fact,\nissue, or both.\nFact: A reality of events of which the actual occurrence is to be determined by evidence\nto establish the truth.\nIssue: The problem or dispute which the parties seek to resolve.\nJudge: A person appointed or elected to administer the law in a court.\nLaw Clerk: Usually a person who has completed law school. They may or may not be\na fully licensed attorney. They assist a judge with various tasks, such as legal research\nand the writing of legal opinions.\nOpening Statement: Made by the attorneys, it is the outline of the case and anticipated\nevidence to be presented at trial. It is presented to a judge and/or jury at the start of the\ntrial before any evidence is submitted. In a criminal case, the district attorney is required\nto give an opening statement and goes first. The defense attorney is under no obligation\nto present an opening statement in a criminal case.\nParties: The person or entity bringing the action and the person or entity against whom\nthe action is brought. The parties in a lawsuit are often referred to as opposing parties.\nPersonal Injury: A civil wrong between private persons or entities. It involves civil\nactions such as automobile accidents, malpractice, \xe2\x80\x9cslip and fall\xe2\x80\x9d, and libel/slander\ncases. Typically, plaintiffs are suing to recover money damages for medical bills, pain\nand suffering, or damage to their reputation. Personal injury is also called torts.\nPetitioner: The person or entity bringing the action usually in a family court or surrogate\ncourt proceeding. In some proceedings, they are called the plaintiff.\nPlaintiff: The person or entity bringing the lawsuit. In some proceedings they are called\nthe petitioner.\nPleadings: These are the formal legal documents in a lawsuit. The complaint contains\nthe claims of the plaintiff and the answer contains the response of the defendant to the\nplaintiff\xe2\x80\x99s claims.\nReasonable Doubt: Standard used to determine the guilt or of an accused in a criminal\ncase. (For more, see definition in Chapter 2.)\n44\n\n\x0cRecord: All the pleadings, exhibits, and word-for-word testimony recorded during a\ntrial by a court reporter.\nRedirect Examination: The re-questioning of a witness by the direct examiner after\nthe cross-examination of the witness.\nRemedy: What a party is seeking as a result of being wronged by another party. In civil\ncases, this is usually money for damages or injuries suffered. In criminal cases, it is\nusually restitution and/or punishment as set forth by law.\nRespondent: A person or entity against whom a lawsuit or legal proceeding has been\nstarted. In some legal proceedings; they are called a defendant.\nSubpoena: A legal document which is served on a witness compelling the witness to\npresent documents or evidence, and/or appear in court or at a hearing at a particular time\nand place.\nSummation: The final statements by the attorneys to the jury or court summarizing the\nevidence they think they have established and the evidence they think the other side has\nfailed to establish. This is also called the closing argument. In New York criminal cases,\nthe defense goes first with his closing argument, and then the prosecutor closes. In New\nYork civil cases, the plaintiff closes after the defense.\nSummons: The notice served on the opposing party by the person bringing a civil\nlawsuit. In a criminal matter, a summons is served ordering a person to appear in court\nfor a lesser criminal offense or traffic violation instead of arresting that person. This is\nalso called an appearance ticket.\nTestimony: Oral statements given under oath at a trial or hearing.\nTort: A civil wrong between private persons or entities. It involves civil actions such\nas automobile accidents, malpractice, \xe2\x80\x9cslip and fall\xe2\x80\x9d, and libel/slander cases. Typically,\nplaintiffs are suing to recover money damages for medical bills, pain and suffering, or\ndamage to their reputation. Torts are often called personal injury.\nVerdict: The finding made by a judge or jury on the issues submitted to them at the\nconclusion of a trial.\n\nReferences:\nFind Laws, Legal Information, and Attorneys. (n.d.). Retrieved July 27, 2018, from\nhttps://www.findlaw.com/\nNew York State. (n.d.). New York State Unified Court System. Retrieved July 27, 2018, from\nhttp://nycourts.gov/\nNew York State Court of Appeals. (n.d.). Retrieved July 27, 2018, from\nhttp://www.nycourts.gov/ctapps/\n\n45\n\n\x0cPogue, D. L., Clifford, E., & Schwartz, A. L. (2009). Understanding New York Law, 2013-14.\nUpstate Legal Publishers\nSupreme Court of the United States Home. (n.d.). Retrieved July 27, 2018, from\nhttps://www.supremecourt.gov/\nUnited States Courts. (n.d.). Retrieved July 27, 2018, from http://www.uscourts.gov/\n\n46\n\n\x0cCHAPTER 4\nHOW THE UNITED STATES AND NEW YORK STATE CONSTITUTIONS\nAFFECTS OUR LIVES\nINTRODUCTION\nThis chapter will discuss two very important legal documents, the New York State Constitution\nand the United States Constitution. When most people mention the \xe2\x80\x9cConstitution\xe2\x80\x9d they are usually\nreferring to the United States Constitution which was ratified in 1788. However, 11 years early,\nNew York State had adopted its first of four Constitutions, with the last major modifications\noccurring back in 1938.\nThis chapter will discuss both Constitutions and how they impact our lives as citizens of both the\nUnited States of America and New York State.\nTHE HISTORY OF THE NEW YORK STATE CONSTITUTION:\nAs already mentioned above, New York\xe2\x80\x99s first Constitution was adopted in 1777. However, since\nthat time, the NYS\xe2\x80\x99s Constitution has been rewritten three more times, in 1821, 1846, and 1894.\nNYS\xe2\x80\x99s current Constitution is from 1938. It was not rewritten but modified by amendments to the\n1894 Constitution.\nTHE NEW YORK STATE CONSTITUTION OF 1777:\nNew York\'s first Constitution was drafted right after New York\'s Fourth Provincial Congress\ndeclared New York independent of Great Britain in 1776. It was formally adopted by the\nConvention of Representatives of the State of New York meeting in the upstate town of Kingston,\non April 20th, 1777.\nThe Constitution declared the possibility of reconciliation between British and its former American\ncolonies even if uncertain and remote. The Constitution then declared that there was now the need\nfor the creation of a new New York government for the preservation of internal peace, virtue, and\ngood order.\nThis new Constitution created three governmental branches: an executive branch, a judicial\nbranch, and a legislative branch. The Constitution called for the election of a governor, 24 senators,\nand 70 assemblymen from 14 declared counties who were to be elected by eligible male\ninhabitants. The right to vote was tied to the ownership of a certain amount of property. The\nConstitution also guaranteed the right to a jury trial.\nTHE NEW YORK STATE CONSTITUTION OF 1821:\nAt the 1821 Convention, there was a bitter debate over the property qualifications for voting. Many\nat the convention felt the need to retain property ownership was a qualification for the right to vote,\nand was necessary to avoid as Chancellor James Kent, the state\xe2\x80\x99s leading legal scholar and the\nhead of its highest Court, said \xe2\x80\x9ccorruption, injustice, violence and tyranny\xe2\x80\x9d.\nHowever, Governor Daniel Tompkins, the chairman of the Convention who had led the State\nmilitias during the War of 1812, argued that all the men who fought in the war should have a right\n47\n\n\x0cto vote. A motion to retain property qualifications for voting was defeated by a vote of 19 to 100,\nand with it one of the most important political developments in New York\xe2\x80\x99s history was\nestablished.\nThe New York State Constitution of 1821 had many flaws. It did not give women the right to vote.\nIt effectively disenfranchised free African American men by requiring them to own at least $250\nof property to vote. Nevertheless, it set the stage for major social and political change. As the\nstate\xe2\x80\x99s economy moved from agricultural to industrial, and with influx of immigrants arriving from\naround the world, the right to vote without the need to own land helped establish eventual broadbased suffrage.\nTHE NEW YORK STATE CONSTITUTION OF 1846:\nSeveral changes where established in the 1846 rewrite of the NYS Constitution. Most notably,\nwere the abolishment of the Court of Chancery, the Court for the Correction of Errors, and the\nNew York State Circuit Courts. Jurisdiction was moved to the New York Supreme Court, and\nappellate jurisdiction to the New York Court of Appeals. The Attorney General, Secretary of State,\nComptroller, Treasurer, and State Engineer offices went from appointed cabinet offices to elected\nofficials.\nTHE NEW YORK STATE CONSTITUTION OF 1894:\nThe rewrite of the 1894 Constitution included the reduction in the number of years in office for\nthe governor and lieutenant governor from three to two. The number of state senators and\nassemblymen was increased. The year of cabinet officer elections was changed. The State Park\nReserve was given perpetual protection. Convict labor was abolished. Voting machines were\nallowed to be used.\nTHE NEW YORK STATE CONSTITUTIONAL CONVENTION OF 1938:\nWhile the Constitution was not rewritten at this convention, 57 amendments to the 1894\nConstitution were presented to the voters. Some of the notable changes approved by vote were\nthe setting out of the rights of public works workers, the removal of a debt ceiling for NYC so the\ncity could finance a public rapid transport system, and permission for the State legislature to\nprovide funds for transportation to parochial schools.\nTHE HISTORY OF THE U.S. CONSTITUTION:\nPerhaps the most important legal document ever written, the U.S. Constitution is the heart and soul\nof the experiment known as the United States of America.\nThe preamble, which has no legal applicability, is nevertheless important. It sets out the goals and\naspirations of what the Framers of the Constitution where hoping to accomplish during the summer\nof 1787. It reads: \xe2\x80\x9cWe the people of the United States, in order to form a more perfect union,\nestablish justice, insure domestic tranquility, provide for the common defense, promote the general\nwelfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish\nthis Constitution for the United States of America.\xe2\x80\x9d\nThe U.S. Constitution was proposed, debated, and written between May 14 and September 17,\n1787 at a convention held in the city of Philadelphia. Every state sent delegates to this convention,\nwith except of the state of Rhode Island. It was ratified on June 21, 1788, when New Hampshire\n48\n\n\x0cbecame the ninth and last state needed to ratify the new Constitution. So, what were the\ncircumstances and events that brought 12 of 13 states to Philadelphia in 1787, resulting in this new\nConstitution and thereby creating this new form of government?\nTHE REVOLUTIONARY WAR:\nWhile most of us have a basic understanding of the Revolutionary War, also known as the\nAmerican Revolution, it cannot be understated how much influence that war had on the formation\nof our Constitution and new form of government that ensued. The war started in 1775, and\neffectively was over by 1781 after the Continental Army defeated the British at Yorktown, with\nFrench assistance. The fighting formally ended in 1783.\nThe war started due to growing tensions between the British and the 13 colonies that were only\ngetting worse. The British were continuing to raise taxes on the colonists, while at the same time,\ndenying them representation. Violence between the British and the colonist started in 1770 with\nthe Boston Massacre, which resulted in five dead colonists killed by British soldiers. By 1773, we\nhave a group of Bostonians dressed as Mohawk Indians dumping 342 chests of tea into the Boston\nHarbor. Shortly thereafter, the 13 American colonies created a Continental Congress. Their first\nmeeting, in 1774, in Philadelphia was to air their grievances with the British crown. By their\nsecond meeting in 1775, they voted to create the Continental Army with George Washington as\nthe Commander in Chief. By July 4, 1776, they adopted the Declaration of Independence, a\ndocument written by a five-man committee, including Ben Franklin and John Adams, but written\nprimarily by Thomas Jefferson. The American Revolution was now in full swing.\nTHE ARTICLES OF CONFEDERATION:\nOur first Constitution was actually the Articles of Confederation. The Continental Congress felt\nthe need to create a central government due to the war. Six different drafts of the Articles of\nConfederation were presented to the Congress, as early as 1775. The Congress adopted the final\nversion in 1777, but they did not go into effect until 1781.\nThe Articles of Confederation defined itself as \xe2\x80\x9ca firm league of friendship\xe2\x80\x9d of states \xe2\x80\x9cfor their\ncommon defense, the security of their liberties, and their mutual and general welfare.\xe2\x80\x9d It had a\nunicameral congress, in other words, one body. Each state had one vote elected by each state\xe2\x80\x99s\nlegislature. Each state retained their \xe2\x80\x9csovereignty, freedom, and independence.\xe2\x80\x9d The new Congress\ncould not levy taxes and could not regulate commerce. The Congress lacked sole control over\nforeign relations. While it had the authority to maintain an army and navy, it lacked the ability to\ncollect revenue to do so. Nine states created their own armies, and several had their own navies.\nStates created their own money. States were imposing tariffs randomly on goods, and the Congress\nhad no power to stop any of this.\nThe Articles of Confederation was effectively an alliance, or treaty, between the 13 colonies and\nit was not working very well. By 1787, without the ability to raise revenue with taxes, it was clear\nthat maintaining a national army and navy was impossible. There was no consistent national\neconomic policy and the economy in general was in trouble. A convention was convened to meet\nin Philadelphia, on May 14th, 1787, to address these issues and amend the Articles of\nConfederation. Twelve of the thirteen states sent delegates to the convention. Rhode Island was\nthe sole holdout. Long known for the fierce independence, they feared the convention would lead\n49\n\n\x0cto a stronger more centralized government, something they were long opposed to, and they\ntherefore refused to participate.\nTHE CONSTITUTION CONVENTION:\nThe meeting was to start on May14th, but travel was difficult, and many arrived late. Almost all\nthe delegates had taken part in the Revolution. Twenty-nine of the fifty-four in attendance had\nserved in the Continental forces. Over half were trained as attorneys. About 80% of them served\nin the Congress. Almost all had political experience. Twenty-five of them owned slaves. Most\nwere landowners with wealth. For example, George Washington, who was in attendance, was one\nof the wealthiest men in the country.\nSeveral important Founders were not in attendance. Thomas Jefferson was serving as the minister\nto France. He was not in favor of this convention. John Adams was serving as the minister to\nBritain. He was in favor of this convention and expressed such in writings to the delegates. John\nHancock and Samuel Adams were absent. Patrick Henry did not attend stating he \xe2\x80\x9csmelt a rat in\nPhiladelphia, tending toward monarchy.\xe2\x80\x9d\nHowever, there were important Founders in attendance. As mentioned above, George Washington\nwas in attendance, as was Benjamin Franklin. Also in attendance was James Madison, who\neventually will be known as the father of our Constitution. Washington\xe2\x80\x99s attendance is crucial,\nsince he is seen as a national hero and leader, giving credibility to the convention. But Madison\nwas perhaps the most prepared delegate. He was determined not to amend the Articles of\nConfederation, but to create an entirely new government. He is one of the first to arrive, and he\nkeeps copious notes during the entire convention. He is one of the delegates from Virginia, and he\npresents to the convention delegates what is known as the Virginia Plan. He does so first, and this\nis not by accident. It was planned.\nWHAT IS THE VIRGINIA PLAN?\nThe Virginia plan proposed three separate branches of government; legislative, executive, and\njudicial. It proposed separation of powers between these three branches, with checks and balances\nbuilt in. It proposed a bicameral legislature, which meant a legislative branch of government\nconsisting of two chambers. Representation would be based on the number of free inhabitants in\neach state. Thus, it favored larger states. Overall, it reflected a strong national form of government.\nWHAT IS THE PINCKNEY PLAN?\nProposed by Charles Pinckney of South Carolina, it advanced a bicameral legislature with a House\nof Delegates and a Senate. The House of Delegates would have one member for each 1,000\ninhabitants of a state. The House would then elect Senators who would serve four terms in rotation\nwith Senators representing one of four regions of the country. The House would then meet to elect\na President and appoint the cabinet members. The Congress would also serve as a court of appeal\nto resolve disputes between the states. The plan also called for a federal court system. While\nresembling the Virginia plan in many aspects, Pinckney did not have a coalition of support behind\nhim that Madison had, and therefore his plan was not debated by the delegates.\nWHAT IS HAMILTON\xe2\x80\x99S PLAN?\n\n50\n\n\x0cProposed by Alexander Hamilton, he advocated for doing away with state sovereignty and\nconsolidation into one nation. It called for a bicameral legislature with one chamber elected by the\npeople for three-year terms, and the other chamber members elected by electors chosen by the\npeople, with life time terms. It also called for an executive again elected by electors who would\nalso have a life time term. While well thought out, it was felt by the delegates to be too close a\nresemblance of the British system, and therefore a non-starter.\nWHAT IS THE NEW JERSEY PLAN?\nAfter the Virginia Plan was proposed, William Paterson from New Jersey proposed a rebuttal plan\nthat favored smaller states like New Jersey. Under the New Jersey Plan, the legislature would\nremain unicameral with one vote per state, as was already the case under the Articles of\nConfederation. This plan also advocated for the belief that states were independent entities that\nremained so, even upon agreement to join the United States of America.\nWHICH PLAN PREVAILED?\nUltimately, our current Constitution resembles more of the Virginia Plan proposed by James\nMadison than any of the others. It was modified with ideas from the New Jersey Plan to obtain\ncompromise between the small and large states. However, much of the debate and compromise\nneeded to create the Constitution was over the presidency, the judiciary, and slavery.\nTHE PRESIDENCY DEBATE AND THE ELECTORIAL COLLEGE:\nOne of the most contentious debates was over the election of the president. There was widespread\nconcern over a direct election of the president by the people. Many felt that information was passed\nalong too slowly across the country, leading to the people only voting for those from their state or\nregion. The Virginia Plan proposed the election of the president by the legislature. Some wanted\nthe president chosen by the state governors. Others proposed that state legislatures elect the\npresident. Others proposed that special members of Congress chosen by lot elect the president.\nThe compromise was the Electoral College.\nThe compromise gave each state a number of electors equal to the number of members of the\nHouse of Representatives for each state, plus its two senators. These electors would then vote, and\nthereby elect the president. The election of the president would require a majority of the Electoral\nCollege vote, and if that did not happen, the house would then vote based on state block voting,\nnot as individual members.\nThere is evidence to believe that the founders assumed the electors would be independent agents\nvoting for the presidential candidate based on their merits, not necessarily on the popular vote of\nits states voters. Within the first decade under the Constitution, the electors were regarded more as\nagents of the will of the people and were expected, although not required, to vote for the\npresidential candidate that garnered the popular vote in their respective states. State legislatures\nwere allowed to decide on how their electors were selected.\nTHE JUDICIARY DEBATE:\nThe debate over the judiciary centered on whether judges should be chosen by the legislature or\nby the president. Madison felt strongly that the link between the current judiciary and the state\nexecutives fostered corruption and patronage. He wanted the judiciary to be an independent branch\n51\n\n\x0cof the government, and therefore felt it would be best if the legislature chose judges. However,\nmany felt this should be the function of the president. A compromise was reached where the\npresident would nominate judges, with the senate confirming them.\nTHE SLAVERY DEBATE AND COMPROMISES:\nSlavery was one, if not the most controversial issues at the convention. Slavery was widespread.\nTwenty-five of the fifty-five delegates owned slaves, including all the delegates from Virginia. It\nwas such an intense debate that several of the southern states made it clear they would not join this\nnew Union if slavery was abolished.\nDelegates from states opposed to slavery that wanted it outlawed felt the need and pressure to\ncompromise. A close look at the Constitution shows the intention that the Framers neither\nauthorized, nor prohibited slavery. Slavery is dealt with three times in the original Constitution.\nIt is first implied in Article 1, Section 2. It reads: \xe2\x80\x9cRepresentatives and direct Taxes shall be\napportioned among the several States which may be included within this Union, according to their\nrespective Numbers, which shall be determined by adding to the whole Number of free Persons,\nincluding those bound to Service for a term of years, and excluding Indians not taxed, three-fifths\nof all other Persons.\xe2\x80\x9d\nThis is known as the Three-Fifths Compromise. It is a compromise between the northern and\nsouthern states where the enumerated population of slaves would not count one-for-one in the\ndistribution of taxes and apportionment of the House of Representatives. This was a compromise\nproposed and supported by the northern states to suppress the power of the southern states in the\nHouse of Representatives.\nSlavery is again implied in Article 1, Section 9 which reads: \xe2\x80\x9cThe Migration and Importation of\nsuch Persons as any of the States now existing shall think proper to admit, shall not be prohibited\nby the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be\nimposed on such Importation, not exceeding ten dollars for each Person.\xe2\x80\x9d\nThis section deals with the issues of importation and taxation of the slave trade. It prohibits\nCongress from acting on the issue of the slave trade until 1808 and limits the tax imposed on the\nimportation of slaves to no more than ten dollars per slave.\nThe third reference to slavery is in Article IV, Section 2. It reads: \xe2\x80\x9cNo Person held to Service or\nLabour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any\nLaw or Regulation therein, be discharged from such Service or Labour, but shall be delivered up\non Claim of the Party to whom Service or Labour may be due.\xe2\x80\x9d\nThis clause essential says that once a slave, always a slave, unless released by his master. It\nrequired that slaves who escape and move to a free state must be returned to their owners.\nPROVIDE FOR THE COMMON DEFENSE:\nMentioned in the preamble are the words \xe2\x80\x9cprovide for the common defense.\xe2\x80\x9d Why? The winning\nof the American Revolution by common everyday citizens against the greatest military force on\nthe planet, the British, was viewed by some as unlikely to happen again if the United States of\n52\n\n\x0cAmerica was ever attacked. The French Navy was no longer protecting the Americans. At that\ntime, the British, French, and Spanish were all strong militarily and all three had colonial\nambitions. Today you can see the remnants of these ambitions in our neighbors, Canada and\nMexico.\nThe Founders were aware of the need to establish a strong military. They realized that only a\nprofessional organized military could deter, and if need be, respond to a foreign threat. The Articles\nof Confederation did not make this possible. The Constitution put the responsibility of the national\ndefense solely on the new federal government. The states would no longer have separate armies\nand navies. The Founders also made the common defense a shared responsibility between the\nCongress and the President. The President would be the commander-in-chief, but only the\nCongress can declare war. Congress also controls the funding.\nIt cannot be understated how important the common defense was to the Founders. As mentioned\nearlier, almost all were involved in the American Revolution in some capacity. Over half of them\nserved in the Continental forces. For the Founders, a primary and central job of the federal\ngovernment was for the common defense. Thomas Jefferson once said that \xe2\x80\x9cthe power of making\nwar often prevents it.\xe2\x80\x9d\nTHE UNITED STATES CONSTITUTION EXPLAINED:\nThe following are the highlights of the Constitution.\nThe Preamble:\n\xe2\x80\xa2 Has no force in law.\n\xe2\x80\xa2 Explains why the Constitution exists.\n\xe2\x80\xa2 It reflects the desire of the Founders to allow the people the power to \xe2\x80\x9cform a more perfect\nunion\xe2\x80\x9d.\nArticle 1:\n\xe2\x80\xa2 Establishes the first of the three branches of government, the Legislature.\nArticle 1, Section 1:\n\xe2\x80\xa2 The legislature is called the Congress.\n\xe2\x80\xa2 The Congress is a two-part body.\nArticle 1, Section 2:\n\xe2\x80\xa2 One part is the lower house, and it is called House of Representatives.\n\xe2\x80\xa2 To be a member of the House you must be at least 25-years-old.\n\xe2\x80\xa2 The members must also be citizens for at least seven years.\n\xe2\x80\xa2 The members must also be an inhabitant of the state from which they are elected.\n\xe2\x80\xa2 Members of the House are elected to two-year terms.\n\xe2\x80\xa2 The members of the House of Representatives are divided among the states proportionally\nbased on each states population. This means the larger states have more House members.\n\xe2\x80\xa2 The leader of the House is called the Speaker of the House, chosen by the members.\nArticle 1, Section 3:\n\xe2\x80\xa2 The upper house is called the Senate.\n\xe2\x80\xa2 To be a member of the Senate, you must be at least 30-years-old.\n\xe2\x80\xa2 The members of the Senate must also be citizens for nine years.\n53\n\n\x0c\xe2\x80\xa2 The Senators must also be inhabitants of their states.\n\xe2\x80\xa2 The Senators are appointed by their state legislatures.\n\xe2\x80\xa2 The Senators serve six-year terms.\n\xe2\x80\xa2 Each state shall have two senators regardless of their population size.\n\xe2\x80\xa2 The Vice-President is the President of the Senate.\n\xe2\x80\xa2 The Vice-President only votes if there is a tie.\nArticle 1, Section 4:\n\xe2\x80\xa2 Each state establishes its method of electing members.\n\xe2\x80\xa2 It mandates that Congress shall meet at least once per year.\nArticle 1, Section 5:\n\xe2\x80\xa2 Sets the minimum number of members that must be present in order to meet.\n\xe2\x80\xa2 Sets fines for those who do not attend.\n\xe2\x80\xa2 It allows for members to be expelled.\n\xe2\x80\xa2 It requires both houses to record proceedings and votes.\n\xe2\x80\xa2 It requires both houses to agree to an adjournment.\nArticle 1, Section 6:\n\xe2\x80\xa2 Members of Congress will be paid.\n\xe2\x80\xa2 Members of Congress cannot be detained while traveling to and from Congress.\n\xe2\x80\xa2 Members of Congress cannot hold any other office of government while in the Congress.\nArticle 1, Section 7:\n\xe2\x80\xa2 Details how a bill becomes law.\n\xe2\x80\xa2 Requires any bill that raises money to start in the House.\n\xe2\x80\xa2 Bills passed by both houses are sent to the President.\n\xe2\x80\xa2 The President can either sign the bill or veto it.\n\xe2\x80\xa2 If the President vetoes a bill, it is sent back to Congress, and if passed by both houses by a\ntwo-thirds majority, the bill becomes law over the President\xe2\x80\x99s veto.\n\xe2\x80\xa2 If the President does not sign the bill, but also does not veto it, it becomes law after 10\ndays.\n\xe2\x80\xa2 If the bill is sent to the President, he does not sign it, and the Congress adjourns before the\n10 days, the bill does not become law.\nArticle 1, Section 8:\n\xe2\x80\xa2 Congress has the power to establish and maintain an army and navy.\n\xe2\x80\xa2 Congress has the power to establish post offices.\n\xe2\x80\xa2 Congress has the power to create courts.\n\xe2\x80\xa2 Congress has the power to regulate commerce between the states.\n\xe2\x80\xa2 Congress has the power to declare war.\n\xe2\x80\xa2 Congress has the power to raise money.\n\xe2\x80\xa2 Congress has the power to pass any law necessary for carrying out these powers. This is\nknown as the Elastic Clause.\nArticle 1, Section 9:\n\xe2\x80\xa2 Congress cannot suspend habeas corpus.\n\xe2\x80\xa2 Congress cannot issue bills of attainder.\n\xe2\x80\xa2 Ex post facto laws are prohibited.\n54\n\n\x0c\xe2\x80\xa2 No law can give preference to one state over another.\n\xe2\x80\xa2 No money can be taken from the treasury, except by law.\n\xe2\x80\xa2 No titles of nobility are allowed.\nArticle 1, Section 10:\n\xe2\x80\xa2 States cannot make their own money.\n\xe2\x80\xa2 States cannot declare war.\n\xe2\x80\xa2 States cannot tax goods from other states.\n\xe2\x80\xa2 States cannot have navies.\n\xe2\x80\xa2 States cannot pass ex post facto laws\n\xe2\x80\xa2 States cannot grant titles of nobility\n\xe2\x80\xa2 States cannot impair the obligation of contracts\nArticle 2:\n\xe2\x80\xa2 Establishes the second of three branches of government, the Executive.\nArticle 2, Section 1:\n\xe2\x80\xa2 Establishes the offices of the President and the Vice-President.\n\xe2\x80\xa2 Their terms are four-years.\n\xe2\x80\xa2 The President is elected by the Electoral College.\n\xe2\x80\xa2 Each state gets one vote for each member of Congress in the Electoral College.\n\xe2\x80\xa2 Whoever gets the most Electoral College votes is President.\n\xe2\x80\xa2 Whoever comes in second is Vice-President.\n\xe2\x80\xa2 To be President, you must be at least 35-years-old.\n\xe2\x80\xa2 Presidents must be natural-born-citizens of the United States.\n\xe2\x80\xa2 The President is paid a salary that cannot be changed while in office.\nArticle 2, Section 2:\n\xe2\x80\xa2 The President is Commander-in-Chief of the armed forces and the militia of all states.\n\xe2\x80\xa2 The President has a Cabinet to assist him.\n\xe2\x80\xa2 The President can pardon criminals.\n\xe2\x80\xa2 The President makes treaties with other countries that must be approved by the Senate.\n\xe2\x80\xa2 The President chooses judges that must be approved by the Senate.\nArticle 2, Section 3:\n\xe2\x80\xa2 The President must give a State of the Union address each year.\n\xe2\x80\xa2 The President can make suggestions to Congress.\n\xe2\x80\xa2 The President, as head of state, receives ambassadors and heads of other countries.\n\xe2\x80\xa2 The President is required to make sure laws of the United States are carried out.\nArticle 2, Section 4:\n\xe2\x80\xa2 The President, Vice-President, and all civil officers of the United States can be removed\nfrom office by impeachment.\n\xe2\x80\xa2 Impeachment is allowed on of the above are convicted of treason, bribery, or other high\ncrimes and misdemeanors.\nArticle 3:\n\xe2\x80\xa2 Establishes the third of three branches of government, the Judiciary.\nArticle 3, Section1:\n\xe2\x80\xa2 Establishes the Supreme Court as the highest court in the United States.\n55\n\n\x0c\xe2\x80\xa2 Gives Congress the power to establish inferior, or lower, courts.\n\xe2\x80\xa2 Terms of judges are as long as they are on good behavior, which means for life.\n\xe2\x80\xa2 Judges shall be paid and their pay cannot be lowered.\nArticle 3, Section 2:\n\xe2\x80\xa2 Established the Supreme Court\xe2\x80\x99s original jurisdiction for disputes in which a state is a\nparty, or in cases involving representatives of foreign nations.\n\xe2\x80\xa2 In all other matters, the Supreme Court has only appellate jurisdiction.\n\xe2\x80\xa2 Requires the right to a jury trial for all crimes, except for impeachment.\nArticle 3, Section 3:\n\xe2\x80\xa2 Defines treason as levying war against the United States, or giving adherence to its\nenemies, or providing them aid and comfort.\n\xe2\x80\xa2 To be convicted, there must be two witnesses to the same act or confession in open court.\nArticle 4:\n\xe2\x80\xa2 Establishes state obligations.\nArticle 4, Section 1:\n\xe2\x80\xa2 Provides that Full Faith and Credit to the laws of other states.\nArticle 4, Section 2:\n\xe2\x80\xa2 It requires that citizens of one state be treated the equally and fairly as other citizens from\nother states.\n\xe2\x80\xa2 Requires extradition for those fleeing from states where they committed a crime.\n\xe2\x80\xa2 Requires that slaves who escape be returned to their owners.\nArticle 4, Section 3:\n\xe2\x80\xa2 Concerns the admittance of new states into the Union.\n\xe2\x80\xa2 Concerns the control of federal lands.\nArticle 4, Section 4:\n\xe2\x80\xa2 Guarantees each state a Republican (representative democracy) form of government.\n\xe2\x80\xa2 Guarantees the federal government will protect the states from all invasions and\ninsurrection.\nArticle 5:\n\xe2\x80\xa2 Establishes how to amend the Constitution.\n\xe2\x80\xa2 One way is for a bill to pass both houses of the legislature, by a two-thirds majority in each.\nOnce the bill has passed both houses, it goes on to the states where it must be approved or\nratified by three-fourths of the states. This is the method taken for all current amendments.\n\xe2\x80\xa2 Another way is for a Constitutional Convention to be called by two-thirds of the\nlegislatures of the States, and for that Convention to propose one or more amendments.\nThese amendments are then sent to the states to be approved by three-fourths of the\nlegislatures or conventions. This method has never been used.\n\xe2\x80\xa2 Provides that no amendment could be made prior to 1808 that would affect the 1st and 4th\nclauses in Section 9 of Article 1.\n\xe2\x80\xa2 Provides that equal representation of the states in the Senate could not be amended without\nthe state\xe2\x80\x99s consent.\nArticle 6:\n56\n\n\x0c\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nEstablishes certain obligations of the United States.\nAll debts incurred under the Articles of Confederation will be honored by the new\ngovernment.\nAll laws and treaties of the United States shall be the supreme law of the land.\nIt requires all officers of the United States and the states to swear an oath of allegiance to\nthe United States and the upholding of the Constitution when taking office.\n\nArticle 7:\n\xe2\x80\xa2 Required that at least nine of the thirteen states would have to ratify the Constitution before\nit would be applied to all the states.\n\xe2\x80\xa2 Delaware ratified the Constitution on December 7, 1787.\n\xe2\x80\xa2 Pennsylvania ratified the Constitution on December 12, 1787.\n\xe2\x80\xa2 New Jersey ratified the Constitution on December 18, 1787.\n\xe2\x80\xa2 Georgia ratified the Constitution on January 2, 1788.\n\xe2\x80\xa2 Connecticut ratified the Constitution on January 9, 1788.\n\xe2\x80\xa2 Massachusetts ratified the Constitution on February 6, 1788 .\n\xe2\x80\xa2 Maryland ratified the Constitution on April 28, 1788.\n\xe2\x80\xa2 South Carolina ratified the Constitution on May 23, 1788.\n\xe2\x80\xa2 New Hampshire ratified the Constitution on June 21, 1788.\n\xe2\x80\xa2 Virginia ratified the Constitution on June 25, 1788.\n\xe2\x80\xa2 New York ratified the Constitution on July 26, 1788 .\n\xe2\x80\xa2 North Carolina ratified the Constitution on November 21, 1789.\n\xe2\x80\xa2 Rhode Island ratified the Constitution on May 29, 1790.\nWHAT\xe2\x80\x99S MISSING?\nWhen most people think or talk about the Constitution, they most often go right to the Bill of\nRights. However, the Bills of Rights were not part of the original Constitution. The original\nConstitution was about forming a new government. It said little about individual rights under this\nnew government.\nDuring the ratification process, there was much debate between the federalist, those who favored\nthe ratification of the Constitution, and the anti-federalist, those who were opposed to the\nConstitution, feeling that so much centralized power would eventually lead to tyranny. Leading\nfederalists included Alexander Hamilton, John Jay, and James Madison. Together, the three wrote\n85 essays making the philosophical case for ratifying the Constitution. These essays are known as\nthe Federalist Papers.\nHowever, anti-federalists like George Mason, Patrick Henry, and Samuel Adams were not in favor\nof ratification because of the lack individual liberty protections. As the ratification process moved\nforward, some states refused to ratify the Constitution without adding a declaration of rights.\nAmending the Constitution after it had already been ratified by several states was not seen as a\npractical solution. Instead, the leading federalists like James Madison promised to propose\namendments to the Constitution that would provide rights of liberty to the citizenry once it was\nratified. Soon after the Constitution was ratified, James Madison made good on this promise. and\n57\n\n\x0cproposed twelve Amendments to the Constitution known as the Bill of Rights. Ten were passed\nand ratified by the states on December 15, 1791.\nThere were two amendments of the twelve that did not get ratified originally. One did in 1992, the\nTwenty-Seventh Amendment to the Constitution. The other has never been ratified. It would have\nrequired each congressional district not to exceed a population of 50,000 citizens.\nAMENDMENTS TO THE UNITED STATES CONSTITUTION:\nAmendment 1 establishes: (Ratified 1791)\n\xe2\x80\xa2 Freedom of religion.\n\xe2\x80\xa2 Freedom of the press.\n\xe2\x80\xa2 Freedom of speech.\n\xe2\x80\xa2 Freedom to assemble.\n\xe2\x80\xa2 Freedom to petition the government.\nAmendment 2 establishes: (Ratified 1791)\n\xe2\x80\xa2 The right to own a firearm.\nAmendment 3 establishes: (Ratified 1791)\n\xe2\x80\xa2 That the government cannot force a homeowner to provide room and board to the military.\nAmendment 4 establishes: (Ratified 1791)\n\xe2\x80\xa2 Protection from the government from unreasonable search and seizure of their person or\nproperty without a warrant based on probable cause.\nAmendment 5 establishes: (Ratified 1791)\n\xe2\x80\xa2 Due process of law.\n\xe2\x80\xa2 The requirement of an indictment for charged crimes.\n\xe2\x80\xa2 That one cannot be charged twice for the same crime.\n\xe2\x80\xa2 That one cannot be forced to testify against themselves.\n\xe2\x80\xa2 That your property cannot be taken by the government without just compensation.\nAmendment 6 establishes: (Ratified 1791)\n\xe2\x80\xa2 The right to a fair and impartial jury.\n\xe2\x80\xa2 The right to a speedy trial.\n\xe2\x80\xa2 The right to an attorney.\n\xe2\x80\xa2 The right to compel witnesses to testify on your behalf.\n\xe2\x80\xa2 The right to confront witnesses testifying against you.\nAmendment 7 establishes: (Ratified 1791)\n\xe2\x80\xa2 The right to a civil jury trial in federal court.\nAmendment 8 establishes: (Ratified 1791)\n\xe2\x80\xa2 That punishment must be fair and not cruel.\n\xe2\x80\xa2 That fines and bail will be fair.\nAmendment 9: (Ratified 1791)\n\xe2\x80\xa2 Makes the statement that rights may exist that are not stated, and just because they are not\nlisted, does not mean they cannot be violated by the government.\nAmendment 10: (Ratified 1791)\n\xe2\x80\xa2 Provides that power not granted to the federal government belongs to the states.\nAmendment 11: (Ratified 1795)\n\xe2\x80\xa2 Changed a portion of Article 3, Section 2.\n58\n\n\x0c\xe2\x80\xa2\n\nFederal Courts are prohibited from hearing certain lawsuits between the states and between\ncitizens of different states.\n\xe2\x80\xa2 State courts do not have to hear certain suits against the state, if those suits are based on\nfederal law.\nAmendment 12: (Ratified 1804)\n\xe2\x80\xa2 Redefines how the Vice-President is chosen. It would now be cooperative, not who comes\nin second place.\nAmendment 13: (Ratified 1865)\n\xe2\x80\xa2 Abolishes slavery throughout entire United States.\nAmendment 14: (Ratified 1868)\n\xe2\x80\xa2 Granted citizenship to all persons born or naturalized in the United States which included\nfreed slaves.\n\xe2\x80\xa2 Prohibits the states from denying any person life, liberty, and property without due process\nof law.\n\xe2\x80\xa2 Requires the states to provide equal protection under the law.\n\xe2\x80\xa2 Removed the three-fifths counting of slaves in the census.\n\xe2\x80\xa2 Stated that the United States would not pay the debts of the rebellious states.\n\xe2\x80\xa2 It set out loyalty requirements of legislators that participated in the Confederacy.\nAmendment 15: (Ratified 1870)\n\xe2\x80\xa2 Granted freed male slaves the right to vote.\nAmendment 16: (Ratified 1913)\n\xe2\x80\xa2 Allowed the federal government the right to base and collect taxes on incomes.\nAmendment 17: (Ratified 1913)\n\xe2\x80\xa2 Modified Article I, Section 3, of the Constitution by allowing voters to cast direct votes for\nU.S. Senators.\nAmendment 18: (Ratified 1919)\n\xe2\x80\xa2 Prohibited the manufacturing, transportation, and sale of alcohol within the United States.\nAmendment 19: (Ratified 1920)\n\xe2\x80\xa2 Granted all women the right to vote.\nAmendment 20: (Ratified 1933)\n\xe2\x80\xa2 Moved the beginning and ending of the terms of the president and vice-president from\nMarch 4 to January 20, and of members of Congress from March 4 to January 3.\n\xe2\x80\xa2 States that the vice-president shall be sworn in as president if the president-elect dies before\nbeing sworn in.\n\xe2\x80\xa2 Allows the Congress to pass legislation on a more detailed succession plan if the vicepresident cannot assume the office of the president-elect.\nAmendment 21: (Ratified 1933)\n\xe2\x80\xa2 Repeals the 18th Amendment, and therefore Prohibition.\nAmendment 22: (Ratified 1951)\n\xe2\x80\xa2 Limits the presidency to two terms of four years.\nAmendment 23: (Ratified 1961)\n\xe2\x80\xa2 Extends voting rights in presidential elections to the District of Columbia residents by\ngranting them three electors.\nAmendment 24: (Ratified 1964)\n59\n\n\x0c\xe2\x80\xa2 Prohibits any poll taxes for voting in federal elections.\nAmendment 25: (Ratified 1967)\n\xe2\x80\xa2 Clarifies that the vice-president becomes president in the event of death, resignation,\nremoval from office, or impairment of the president.\n\xe2\x80\xa2 Establishes rules for removal of a president who can no longer perform his or her duties.\nAmendment 26: (Ratified 1971)\n\xe2\x80\xa2 Grants the right to vote to eighteen-year-olds.\nAmendment 27: (Ratified 1992)\n\xe2\x80\xa2 Changes in congressional pay must take place after the current term of those\nrepresentatives.\nWHAT IS THE ROLE OF THE U.S. SUPREME COURT?\nThe U.S. Supreme Court interprets the laws that Congress makes and evaluates, whether the laws\nof Congress, or the laws of any of the states, violate the Constitution, Bill of Rights, or other\namendments.\nThe United States Supreme Court website states: \xe2\x80\x9cThe Court is the highest tribunal in the Nation\nfor all cases and controversies arising under the Constitution or the laws of the United States. As\nthe final arbiter of the law, the Court is charged with ensuring the American people the promise of\nequal justice under law and, thereby, also functions as guardian and interpreter of the\nConstitution.\xe2\x80\x9d\nThe same website also states: \xe2\x80\x9cThe complex role of the Supreme Court in this system derives from\nits authority to invalidate legislation or executive actions which, in the Court\xe2\x80\x99s considered\njudgment, conflict with the Constitution. This power of "judicial review" has given the Court a\ncrucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution"\nwhose broad provisions are continually applied to complicated new situations.\xe2\x80\x9d\nMARBURY V. MADISION, 5 U.S. 137 (1803) AND JUDICIAL REVIEW:\nJohn Adams and Thomas Jefferson ran against each other for president after George Washington\xe2\x80\x99s\ntwo terms. John Adams was President Washington\xe2\x80\x99s Vice President. At the time, under the\nConstitution, the candidate who had the second most votes was the Vice President. John Adams\nand Thomas Jefferson where initially great friends, but over the years, that friendship waned, and\nby the time they ran for president against each other, their friendship was over. Their bids for the\npresidency against each other were nasty and ugly.\nAfter losing his bid for a second term to his then Vice President Jefferson, President John Adams\nmade several lame duck judicial appointments. However, his administration failed to deliver the\nrequired documents commissioning William Marbury as Justice of the Peace in the District of\nColumbia. After President Thomas Jefferson was sworn in, he told James Madison, his Secretary\nof State, to not deliver the documents to Marbury. Marbury then sued James Madison asking the\nSupreme Court to issue a writ requiring him to deliver the documents necessary to officially make\nMarbury Justice of the Peace.\nChief Justice John Marshall issued the opinion of the Court. While the issue before the Court was\nimportant, Justice Marshall recognized that the future role of the Supreme Court itself was in\n60\n\n\x0cquestion. Was it an equal branch of government? It was clear that the appointment itself was legal,\nand the Commission should be delivered to Marbury by President Jefferson. But what if the Court\nordered Jefferson to deliver the Commission and he refused to do so? This was a real possibility\nconsidering the cantankerous relationship between Adams and Jefferson, not to mention the fact\nthat Jefferson was head of the Democratic Party and Justice Marshall and Marbury were\nfederalists. The Court has no enforcement powers. The executive branch, which is the President,\nenforces Supreme Court orders. Then what?\nJustice Marshall also was concerned about how this case was before the Court in the first place.\nThe Supreme Court is an Appellate Court. It is supposed to decide which cases it hears on appeal.\nHowever, this case was before it based on the Judiciary Act of 1789. It was brought directly to the\nSupreme Court without their say.\nThe Court ruled that Marbury was entitled to his commission, but that according to the\nConstitution, the Court did not have the authority to require Madison to deliver the commission to\nMarbury in this case. They found that the Judiciary Act of 1789 conflicted with the Constitution\nbecause it gave the Supreme Court more authority than it was given under the Constitution, and\ntherefore, the statute was unconstitutional. The court decision established judicial review.\nAs a side note, twelve years after the vicious election of 1800, Adams and Jefferson began writing\nletters to each other. They eventually became friends again. They remained friends for the rest of\ntheir lives. As destiny would have it, they passed away on the same day, July 4, 1826, which was\nthe 50th anniversary of the Declaration of Independence.\nHOW MANY MEMBERS ARE ON THE SUPREME COURT?\nThere are nine. However, that has not always been the number of Supreme Court judges. The\nConstitution gives Congress the power to decide on the number. It has been as few as six and as\nmany as ten. It has had nine members since 1869.\n\nWHAT IS THE PROCESS FOR NOMINATING AND CONFIRMING A NEW JUSTICE?\nThe President of the United States nominates a member to the Court. The Senate of the United\nStates must confirm the nominee.\nIS THE NOMINATING AND CONFIRMATION PROCESS POLITICAL?\nThe answer clearly is yes. The appointment of a Supreme Court Justice is for life. They typically\nare chosen based on their legal ideology. Are they strict constructionists that base decisions on the\nexact words in the Constitution? Or, do they believe the Constitution is a living document that can\nbe interpreted differently based on current circumstances? Or, are they somewhere in-between?\nPresidents often nominate those individuals that they believe will interpret the Constitution based\non their personal politics, and the Senators who must confirm, do the same.\nWHAT ARE THE REQUIRED QUALIFICATIONS FOR A SUPREME COURT JUDGE?\nThe Constitution does not mention or require any particular qualifications. To date, all have\npracticed law. Forty have never been judges before becoming a United States Supreme Court\nJudge.\n\n61\n\n\x0cWHAT IS A WRIT OF CERTIORARI?\nThe losing party in a case often wishes to appeal. If everybody could appeal to the United States\nSupreme Court, the Supreme Court would be overloaded with tens of thousands of cases each\nterm. The Supreme Court grants a person permission to appeal by granting them a writ of\ncertiorari. This way the Supreme Court can pick cases to hear involving interesting and significant\nissues of law.\nWHAT IS THE RULE OF FOUR?\nAfter parties appeal their cases to the United States Supreme Court, four of the nine Supreme Court\njustices must agree to grant the writ of certiorari.\nHOW DOES A CASE ARISING IN A NEW YORK TRIAL COURT MAKE ITS WAY UP\nTHE APPELLATE PROCESS ALL THE WAY TO THE UNITED STATES SUPREME\nCOURT?\nOnly a small percentage of cases ever reach the U.S. Supreme Court each year, even if they are\nappealed. The process to get a NYS trial court case to U.S. Supreme Court would be as follows:\nFirst there would be a trial court verdict. The losing party (other than the government in a criminal\ncase) would have a right to have their appeal heard by the Appellate Division of the N.Y. Supreme\nCourt. The losing party could then appeal again to the N.Y. Court of Appeals. That appeal is\ndiscretionary. If the N.Y. Court of Appeals grants such an appeal, the losing party could then\nappeal to the U.S. Supreme Court on the basis that there is a U.S. Constitutional question. The\nU.S. Supreme Court decides on whether to grant a writ of certiorari.\nWHAT IS STARE DECISIS AND CASE LAW PRECEDENT?\nStare decisis is a Latin term meaning "to stand by things decided". It is a legal principle in which\ncourts generally follow the application of the law as decided in similar prior cases. This is referred\nto as following case law precedent. Stare decisis makes the law predictable.\nThe general requirement is that a lower court must follow the precedent of a higher court within\nits jurisdiction. Decisions of lower courts are not binding on higher courts. Decisions of higher\ncourts are not binding on courts not within their jurisdiction, although it may be what they call\npersuasive. Lawyers will try to persuade judges to follow their line of case precedents.\nSometimes there is no case precedent for a particular case. This is often referred to as a \xe2\x80\x9ccase of\nfirst impression.\xe2\x80\x9d Judges then must do their best to interpret how the law should be interpreted or\napplied.\nWHAT IS MEANT BY THE TERM \xe2\x80\x9cLANDMARK CASE\xe2\x80\x9d?\nThe term \xe2\x80\x9cLandmark Case\xe2\x80\x9d usually refers to highly significant decision rendered by the Court\nthat then impact our society.\nHOW TO BRIEF A CASE:\nCourt decisions can be very long and complicated. Students, paralegals, law enforcement,\nlawyers, and judges read cases to understand the law. A case brief is a summary of the\n62\n\n\x0cimportant points of a case. There are many ways to brief a case. The following is one of the\nmore common:\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nCitation\no How the case is legally cited so others can find it.\nFacts\no A brief summary of what happened.\nProcedural History\no A summary of the lower court decisions before it reached this court.\nIssue\no This is the question the appellate court is being asked to answer.\nHolding\no This is the decision of the appellate court to the issue of question being\nasked.\nRationale/Reasoning\no How and why the court came to its decision.\n\nWHAT IS A CITATION?\nA citation is the way to find cases in law books. All appellate cases are published in specific law\nbooks call reporters. These cases are now also found online through various legal online research\nservices. Trial court cases are not published. So, how does one interpret a citation? What does\nTexas v. Johnson, 491 U.S. 397 (1989) mean?\nTexas v. Johnson\n\n=\n\nThe name of the parties of the case.\n\n384\n\n=\n\nVolume number of the reporter.\n\nU.S.\n\n=\n\nThe initials represent the name of the reporter\n\n436\n\n=\n\nPage number within the volume of the reporter.\n\n1966\n\n=\n\nYear in which the case was decided.\n\nHOW DO I SUMMARIZE THE FACTS?\nAnswering the following questions may help you summarize the facts.\n\xe2\x80\xa2\nWhat happened in this case?\n\xe2\x80\xa2\nWho are the people/organizations/companies involved?\n\xe2\x80\xa2\nWhat are the motives the people involved on why they acted as they did?\n\xe2\x80\xa2\nWhich facts are most important?\nWHAT IS THE PROCEDURAL HISTORY OF A CASE?\n\xe2\x80\xa2\nIdentify the lower court decisions mentioned in case.\n\xe2\x80\xa2\nInclude both the trial and appeals court decisions.\nWHAT IS THE ISSUE OR QUESTION BEFORE THE COURT?\nAnswering the following four questions may be helpful in determining the issue.\n\xe2\x80\xa2\nWho are the actors doing something?\n\xe2\x80\xa2\nWho are the recipients of the action?\n63\n\n\x0c\xe2\x80\xa2\nWhat was the action that caused the controversy?\n\xe2\x80\xa2\nWhat is the specific part of the Constitution/statute that is involved?\nOnce you determine what the issue or issue are, present it as a question, hopefully with an answer\nthat elicits a yes or no answer.\nWHAT IS THE COURT\xe2\x80\x99S HOLDING OR DECISION?\nIn a brief sentence or two, answer the question(s) you wrote for the issue. Courts often provide\nyou with hints using words like \xe2\x80\x9cheld\xe2\x80\x9d, \xe2\x80\x9cwe hold\xe2\x80\x9d, \xe2\x80\x9cwe find\xe2\x80\x9d, or \xe2\x80\x9cthe holding of the court is.\xe2\x80\x9d\nHOW DO I DETERMINE WHAT THE RATIONAL/REASONING IS?\nFocus in on why the court made its decision to the question and who it affects.\nWHAT IS A MAJORITY OPINION?\nThe majority opinion is the only opinion of the court that counts and has any legal bearing. If you\nare briefing a case, this is the opinion of the case you are concerned with. For a United States\nSupreme Court decision, this generally means at least five of the nine justices support the decision.\nWHAT IS A CONCURRING OPINION?\nA concurring opinion is when a justice agrees with the result of the majority opinion, but for a\ndifferent reason. It has no legal bearing. Only the majority opinion does.\nWHAT IS A DISSENTING OPINION?\nA dissenting opinion is when judges disagree with the majority opinion, and write their own\nseparate opinion attacking the legal reasoning of the main opinion and giving their own legal\njustification why the rule should be otherwise. It also has no legal bearing.\nSAMPLE CASES AND CASE BRIEFS:\nThe following are two landmark First Amendment cases. They are edited for easier reading, which\nis called a case syllabus. The original texts of these cases are much longer and more difficult to\nread. Following each the case is a sample case brief.\n\nTexas v. Johnson\n491 U.S. 397 (1989)\n(Case Syllabus edited by the Author)\nDuring the 1984 Republican National Convention, respondent Johnson participated in a political\ndemonstration to protest the policies of the Reagan administration and some Dallas-based\ncorporations. After a march through the city streets, Johnson burned an American flag while\nprotesters chanted. No one was physically injured or threatened with injury, although several\nwitnesses were seriously offended by the flag burning. Johnson was convicted of desecration of a\nvenerated object in violation of a Texas statute, and a state court of appeals affirmed.\n\n64\n\n\x0cHowever, the Texas Court of Criminal Appeals reversed, holding that the State, consistent with\nthe First Amendment, could not punish Johnson for burning the flag in these circumstances. The\ncourt first found that Johnson\'s burning of the flag was expressive conduct protected by the First\nAmendment. The court concluded that the State could not criminally sanction flag desecration in\norder to preserve the flag as a symbol of national unity. It also held that the statute did not meet\nthe State\'s goal of preventing breaches of the peace, since it was not drawn narrowly enough to\nencompass only those flag burnings that would likely result in a serious disturbance, and since the\nflag burning in this case did not threaten such a reaction. Further, it stressed that another Texas\nstatute prohibited breaches of the peace and could be used to prevent disturbances without\npunishing this flag desecration.\nHeld: Johnson\'s conviction for flag desecration is inconsistent with the First Amendment.\n(a) Under the circumstances, Johnson\'s burning of the flag constituted expressive conduct,\npermitting him to invoke the First Amendment. The State conceded that the conduct was\nexpressive. Occurring as it did at the end of a demonstration coinciding with the Republican\nNational Convention, the expressive, overtly political nature of the conduct was both intentional\nand overwhelmingly apparent.\n(b) Texas has not asserted an interest in support of Johnson\'s conviction that is unrelated to the\nsuppression of expression and would therefore permit application of the test set forth in United\nStates v. O\'Brien, 391 U.S. 367, whereby an important governmental interest in regulating nonspeech can justify incidental limitations on First Amendment freedoms when speech and nonspeech elements are combined in the same course of conduct. An interest in preventing breaches\nof the peace is not implicated on this record. Expression may not be prohibited on the basis that an\naudience that takes serious offense to the expression may disturb the peace, since the Government\ncannot assume that every expression of a provocative idea will incite a riot but must look to the\nactual circumstances surrounding the expression. Johnson\'s expression of dissatisfaction with the\nFederal Government\'s policies also does not fall within the class of "fighting words" likely to be\nseen as a direct personal insult or an invitation to exchange fisticuffs.\nThis Court\'s holding does not forbid a State to prevent "imminent lawless action" and, in fact,\nTexas has a law specifically prohibiting breaches of the peace. Texas\' interest in preserving the\nflag as a symbol of nationhood and national unity is related to expression in this case and, thus,\nfalls outside the O\'Brien test.\n(c) The latter interest does not justify Johnson\'s conviction. The restriction on Johnson\'s political\nexpression is content-based, since the Texas statute is not aimed at protecting the physical integrity\nof the flag in all circumstances, but is designed to protect it from intentional and knowing abuse\nthat causes serious offense to others. It is therefore subject to "the most exacting scrutiny." Boos\nv. Barry, 485 U.S. 312.\nThe Government may not prohibit the verbal or nonverbal expression of an idea merely because\nsociety finds the idea offensive or disagreeable, even where our flag is involved. Nor may a State\nfoster its own view of the flag by prohibiting expressive conduct relating to it, since the\nGovernment may not permit designated symbols to be used to communicate a limited set of\n65\n\n\x0cmessages. Moreover, this Court will not create an exception to these principles protected by the\nFirst Amendment for the American flag alone.\n755 S.W.2d 92, affirmed.\nBRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN,\nSCALIA, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion. REHNQUIST,\nC.J., filed a dissenting opinion, in which WHITE and O\'CONNOR, JJ., joined. STEVENS, J., filed\na dissenting opinion.\nSAMPLE CASE BRIEF FOR TEXAS V. JOHNSON:\nCITATION:\nTexas v. Johnson, 491 U.S. 397 (1989)\nFACTS:\nMr. Johnson publicly burned an American flag during a political demonstration. He was arrested\nand convicted by of violating a Texas penal code prohibiting the desecration of \xe2\x80\x9ca venerated\nobject\xe2\x80\x9d, in other words the American Flag.\nPROCEDURAL HISTORY:\nThe Texas Court of Appeals affirmed the trial court verdict. The Texas Court of Criminal Appeals\nreversed. The U.S. Supreme Court granted certiorari.\nISSUE:\nWhether the First Amendment, which protects freedom of speech, is violated when a person is\nconvicted for burning an American flag during a political demonstration?\nHOLDING:\nYes. The First Amendment, which protects freedom of speech, is violated when a person is\nconvicted for burning an American flag during a political demonstration.\nREASONING: While the First Amendment literally forbids the abridgment only of \xe2\x80\x9cspeech,\xe2\x80\x9d the\nCourt has previously held that it also protects conduct when conduct is \xe2\x80\x9csufficiently imbued with\nelements of communication.\xe2\x80\x9d Here Johnson\'s flag burning was part of a political demonstration,\nand therefore was the type of conduct meant to be protected as speech. The Court also rejected the\nstate\xe2\x80\x99s two arguments. First, there was no evidence on the record that Johnson\'s conviction was\nnecessary to prevent a breach of the peace. No breach of the peace actually occurred, and his\nconduct did not fall into the \xe2\x80\x9cfighting words\xe2\x80\x9d exception. Second, the state claimed that it has an\ninterest in preserving the flag as a symbol of national unity. However, if that means prohibiting\nthe type of expression that occurred in this case, then the government is enforcing its own political\npreferences, something the First Amendment prohibits. The Court actually suggested that its\nholding will strengthen, and not weaken, our loyalty to the flag.\n\n66\n\n\x0cWisconsin v. Yoder\n406 U.S. 205 (1972)\n(Case Syllabus edited by the Author)\nRespondents, members of the Old Order Amish religion and the Conservative Amish Mennonite\nChurch, were convicted of violating Wisconsin\'s compulsory school attendance law which requires\na child\'s school attendance until age 16. They did so by declining to send their children to public\nor private school after they had graduated from the eighth grade.\nThe evidence showed that the Amish provide continuing informal vocational education to their\nchildren designed to prepare them for life in the rural Amish community. The evidence also\nshowed that respondents sincerely believed that high school attendance was contrary to the Amish\nreligion and way of life, and that they would endanger their own salvation and that of their children\nby complying with the law.\nThe Wisconsin Supreme Court sustained respondents\' claim that application of the compulsory\nschool attendance law to them violated their rights under the Free Exercise Clause of the First\nAmendment, made applicable to the States by the Fourteenth Amendment.\nHeld:\nThe State\'s interest in universal education is not totally free from a balancing process when it\nimpinges on other fundamental rights, such as those specifically protected by the Free Exercise\nClause of the First Amendment and the traditional interest of parents with respect to the religious\nupbringing of their children.\nRespondents have amply supported their claim that enforcement of the compulsory formal\neducation requirement after the eighth grade would gravely endanger if not destroy the free\nexercise of their religious beliefs.\nAided by a history of three centuries as an identifiable religious sect, and a long history as a\nsuccessful and self-sufficient segment of American society, the Amish have demonstrated the\nsincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital\nrole that belief and daily conduct play in the continuing survival of Old Order Amish communities,\nand the hazards presented by the State\'s enforcement of a statute generally valid as to others.\nBeyond this, they have carried the difficult burden of demonstrating the adequacy of their\nalternative mode of continuing informal vocational education in terms of the overall interest that\nthe State relies on in support of its program of compulsory high school education.\nIn light of this showing and weighing the minimal difference between what the State would require\nand what the Amish already accept, it was incumbent on the State to show with more particularity\nhow its admittedly strong interest in compulsory education would be adversely affected by\ngranting an exemption to the Amish.\nThe State\'s claim that it is empowered, as parens patriae, to extend the benefit of secondary\neducation to children regardless of the wishes of their parents cannot be sustained against a free\n67\n\n\x0cexercise claim of the nature revealed by this record, for the Amish have introduced convincing\nevidence that accommodating their religious objections by forgoing one or two additional years of\ncompulsory education will not impair the physical or mental health of the child, or result in an\ninability to be self-supporting, or to discharge the duties and responsibilities of citizenship, or in\nany other way materially detract from the welfare of society.\n49 Wis.2d 430, 182 N.W.2d 539, affirmed.\nBURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE,\nMARSHALL, and BLACKMUN, JJ., joined. STEWART, J., filed a concurring opinion, in which\nBRENNAN, J., joined. WHITE, J., filed a concurring opinion, in which BRENNAN and\nSTEWART, JJ., joined. DOUGLAS, J., filed an opinion dissenting in part. POWELL and\nREHNQUIST, JJ., took no part in the consideration or decision of the case.\nSAMPLE CASE BRIEF FOR WISCONSIN V. YODER:\nCITATION:\nWisconsin v. Yoder, 406 U.S. 205 (1972)\nFACTS:\nJonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy,\na member of the Conservative Amish Mennonite Church, were prosecuted and convicted of\nviolating a Wisconsin law that required all children to attend public schools until age 16. The three\nparents refused to send their children to such schools after the eighth grade, arguing that high\nschool attendance was contrary to their religious beliefs.\nPROCEDURAL HISTORY:\nThe Wisconsin Supreme Court reversed the lower court decisions.\nISSUE: Did Wisconsin\'s requirement that all parents send their children to school at least until\nage 16 violate the First Amendment by criminalizing the conduct of parents who refused to send\ntheir children to school for religious reasons?\nHOLDING: Yes. In a unanimous decision, the Court held that individual\'s interests in the free\nexercise of religion under the First Amendment outweighed the State\'s interests in compelling\nschool attendance beyond the eighth grade.\nREASONING: In the majority opinion by Chief Justice Warren E. Burger, the Court found that\nthe values and programs of secondary school were "in sharp conflict with the fundamental mode\nof life mandated by the Amish religion," and that an additional one or two years of high school\nwould not produce the benefits of public education cited by Wisconsin to justify the law. While\nJustice William O. Douglas filed a partial dissent, he did join with the majority making the majority\ndecision unanimous. Justices Rehnquist and Powell did not take part in the case.\nCOURT CASES:\n68\n\n\x0cThe following are landmark cases that have had an impact various aspects of our lives:\n\nMiranda v. Arizona, 384 U.S. 436 (1966)\n(Case Syllabus edited by the Author)\nIn each of these cases, the defendant, while in police custody, was questioned by police officers,\ndetectives, or a prosecuting attorney in a room in which he was cut off from the outside world.\nNone of the defendants was given a full and effective warning of his rights at the outset of the\ninterrogation process. In all four cases, the questioning elicited oral admissions, and, in three of\nthem, signed statements as well, which were admitted at their trials. All defendants were convicted,\nand all convictions, except in No. 584, were affirmed on appeal.\nHeld:\n1. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from\nquestioning initiated by law enforcement officers after a person has been taken into custody, or\notherwise deprived of his freedom of action in any significant way, unless it demonstrates the use\nof procedural safeguards effective to secure the Fifth Amendment\'s privilege against selfincrimination.\n(a) The atmosphere and environment of incommunicado interrogation as it exists today is\ninherently intimidating and works to undermine the privilege against self-incrimination.\nUnless adequate preventive measures are taken to dispel the compulsion inherent in\ncustodial surroundings, no statement obtained from the defendant can truly be the product\nof his free choice.\n(b) The privilege against self-incrimination, which has had a long and expansive historical\ndevelopment is the essential mainstay of our adversary system and guarantees to the\nindividual the "right to remain silent unless he chooses to speak in the unfettered exercise\nof his own will," during a period of custodial interrogation, as well as in the courts or during\nthe course of other official investigations.\n(c) The decision in Escobedo v. Illinois, 378 U. S. 478, stressed the need for protective devices\nto make the process of police interrogation conform to the dictates of the privilege.\n(d) In the absence of other effective measures, the following procedures to safeguard the Fifth\nAmendment privilege must be observed: the person in custody must, prior to interrogation,\nbe clearly informed that he has the right to remain silent, and that anything he says will be\nused against him in court; he must be clearly informed that he has the right to consult with\na lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a\nlawyer will be appointed to represent him.\n\n69\n\n\x0c(e) If the individual indicates, prior to or during questioning, that he wishes to remain silent,\nthe interrogation must cease; if he states that he wants an attorney, the questioning must\ncease until an attorney is present.\n(f) Where an interrogation is conducted without the presence of an attorney, and a statement\nis taken, a heavy burden rests on the Government to demonstrate that the defendant\nknowingly and intelligently waived his right to counsel.\n(g) Where the individual answers some questions during in-custody interrogation, he has not\nwaived his privilege, and may invoke his right to remain silent thereafter.\n(h) The warnings required, and the waiver needed are, in the absence of a fully effective\nequivalent, prerequisites to the admissibility of any statement, inculpatory or exculpatory,\nmade by a defendant.\n2. The limitations on the interrogation process required for the protection of the individual\'s\nconstitutional rights should not cause an undue interference with a proper system of law\nenforcement, as demonstrated by the procedures of the FBI and the safeguards afforded in other\njurisdictions.\n3. In all of these cases the statements were obtained under circumstances that did not meet\nconstitutional standards for protection of the privilege against self-incrimination.\n98 Ariz.18; 15 N.Y.2d 970; 16 N.Y.2d 614; 342 F.2d 684, reversed; 62 Cal.2d 571, affirmed.\n\nRoe v. Wade, 410 U.S. 113 (1973)\n(Case Syllabus edited by the Author)\nA pregnant single woman (Roe) brought a class action challenging the constitutionality of the\nTexas criminal abortion laws, which proscribe procuring or attempting an abortion except on\nmedical advice for the purpose of saving the mother\'s life. A licensed physician (Hallford), who\nhad two state abortion prosecutions pending against him, was permitted to intervene. A childless\nmarried couple (the Does), the wife not being pregnant, separately attacked the laws, basing\nalleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for\nparenthood, and impairment of the wife\'s health.\nA three-judge District Court, which consolidated the actions, held that Roe and Hallford, and\nmembers of their classes, had standing to sue and presented justiciable controversies. Ruling that\ndeclaratory, though not injunctive, relief was warranted, the court declared the abortion statutes\nvoid as vague and over broadly infringing those plaintiffs\' Ninth and Fourteenth Amendment\nrights. The court ruled the Does\' complaint not justiciable. Appellants directly appealed to this\nCourt on the injunctive rulings, and appellee cross-appealed from the District Court\'s grant of\ndeclaratory relief to Roe and Hallford.\n70\n\n\x0cHeld:\n1. While 28 U.S.C. \xc2\xa7 1253 authorizes no direct appeal to this Court from the grant or denial of\ndeclaratory relief alone, review is not foreclosed when the case is properly before the Court on\nappeal from specific denial of injunctive relief and the arguments as to both injunctive and\ndeclaratory relief are necessarily identical.\n2. Roe has standing to sue; the Does and Hallford do not.\n(a) Contrary to appellee\'s contention, the natural termination of Roe\'s pregnancy did not moot\nher suit. Litigation involving pregnancy, which is "capable of repetition, yet evading\nreview," is an exception to the usual federal rule that an actual controversy must exist at\nreview stages, and not simply when the action is initiated.\n(b) The District Court correctly refused injunctive, but erred in granting declaratory, relief to\nHallford, who alleged no federally protected right not assertible as a defense against the\ngood faith state prosecutions pending against him. Samuels v. Mackell, 401 U. S. 66.\n(c) The Does\' complaint, based as it is on contingencies, any one or more of which may not\noccur, is too speculative to present an actual case or controversy.\n3. State criminal abortion laws, like those involved here, that except from criminality only a lifesaving procedure on the mother\'s behalf without regard to the stage of her pregnancy and other\ninterests involved violate the Due Process Clause of the Fourteenth Amendment, which protects\nagainst state action the right to privacy, including a woman\'s qualified right to terminate her\npregnancy. Though the State cannot override that right, it has legitimate interests in protecting\nboth the pregnant woman\'s health and the potentiality of human life, each of which interests grows\nand reaches a "compelling" point at various stages of the woman\'s approach to term.\n(a) For the stage prior to approximately the end of the first trimester, the abortion decision and\nits effectuation must be left to the medical judgment of the pregnant woman\'s attending\nphysician.\n(b) For the stage subsequent to approximately the end of the first trimester, the State, in\npromoting its interest in the health of the mother, may, if it chooses, regulate the abortion\nprocedure in ways that are reasonably related to maternal health.\n(c) For the stage subsequent to viability, the State, in promoting its interest in the potentiality\nof human life, may, if it chooses, regulate, and even proscribe, abortion except where\nnecessary, in appropriate medical judgment, for the preservation of the life or health of the\nmother.\n4. The State may define the term "physician" to mean only a physician currently licensed by the\nState and may proscribe any abortion by a person who is not a physician as so defined.\n\n71\n\n\x0c5. It is unnecessary to decide the injunctive relief issue, since the Texas authorities will doubtless\nfully recognize the Court\'s ruling that the Texas criminal abortion statutes are unconstitutional.\n314 F.Supp. 1217, affirmed in part and reversed in part.\nBLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and DOUGLAS,\nBRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. BURGER, C.J., DOUGLAS,\nJ., and STEWART, J., filed concurring opinions. WHITE, J., filed a dissenting opinion, in which\nREHNQUIST, J., joined. REHNQUIST, J., filed a dissenting opinion.\n\nPlanned Parenthood of Southeastern Pa. v. Casey\n505 U.S. 833 (1992)\n(Case Syllabus edited by the Author)\nAt issue are five provisions of the Pennsylvania Abortion Control Act of 1982:\n\xc2\xa7 3205 requires that a woman seeking an abortion give her informed consent prior to the procedure,\nand specifies that she be provided with certain information at least 24 hours before the abortion is\nperformed;\n\xc2\xa7 3206 mandates the informed consent of one parent for a minor to obtain an abortion, but provides\na judicial bypass procedure;\n\xc2\xa7 3209 commands that, unless certain exceptions apply, a married woman seeking an abortion\nmust sign a statement indicating that she has notified her husband;\n\xc2\xa7 3203 defines a "medical emergency" that will excuse compliance with the foregoing\nrequirements;\n\xc2\xa7\xc2\xa7 3207(b), 3214(a), and 3214(f) impose certain reporting requirements on facilities providing\nabortion services.\nBefore any of the provisions took effect, the petitioners, five abortion clinics and a physician\nrepresenting himself and a class of doctors who provide abortion services, brought this suit seeking\na declaratory judgment that each of the provisions was unconstitutional on its face, as well as\ninjunctive relief. The District Court held all the provisions unconstitutional and permanently\nenjoined their enforcement. The Third Circuit Court of Appeals affirmed in part and reversed in\npart, striking down the husband notification provision, but upholding the others.\nHeld: The Third Circuit Court of Appeals decision is affirmed.\nJustice O\'Connor, Justice Kennedy, and Justice Souter delivered the opinion of the Court with\nrespect to Parts I, II, and III, concluding that:\n1. Consideration of the fundamental constitutional question resolved by Roe v. Wade, 410 U.S.\n113, principles of institutional integrity, and the rule of stare decisis require that Roe\'s essential\nholding be retained and reaffirmed as to each of its three parts:\n(1) a recognition of a woman\'s right to choose to have an abortion before fetal viability and\nto obtain it without undue interference from the State, whose pre-viability interests are not strong\n\n72\n\n\x0cenough to support an abortion prohibition or the imposition of substantial obstacles to the woman\'s\neffective right to elect the procedure;\n(2) a confirmation of the State\'s power to restrict abortions after viability, if the law\ncontains exceptions for pregnancies endangering a woman\'s life or health; and\n(3) the principle that the State has legitimate interests from the outset of the pregnancy in\nprotecting the health of the woman and the life of the fetus that may become a child.\n(a) A reexamination of the principles that define the woman\'s rights and the State\'s authority\nregarding abortions is required by the doubt this Court\'s subsequent decisions have cast upon the\nmeaning and reach of Roe\'s central holding, by the fact that The Chief Justice would overrule Roe,\nand by the necessity that state and federal courts and legislatures have adequate guidance on the\nsubject.\n(b) Roe determined that a woman\'s decision to terminate her pregnancy is a "liberty" protected\nagainst state interference by the substantive component of the Due Process Clause of the\nFourteenth Amendment. Neither the Bill of Rights, nor the specific practices of States at the time\nof the Fourteenth Amendment\'s adoption, marks the outer limits of the substantive sphere of such\n"liberty." Rather, the adjudication of substantive due process claims may require this Court to\nexercise its reasoned judgment in determining the boundaries between the individual\'s liberty and\nthe demands of organized society.\n(c) Application of the doctrine of stare decisis confirms that Roe\'s essential holding should be\nreaffirmed.\n(d) Although Roe has engendered opposition, it has in no sense proven unworkable, representing\nas it does a simple limitation beyond which a state law is unenforceable.\n(e) The Roe rule\'s limitation on state power could not be repudiated without serious inequity to\npeople who, for two decades of economic and social developments, have organized intimate\nrelationships and made choices that define their views of themselves and their places in society, in\nreliance on the availability of abortion in the event that contraception should fail. The ability of\nwomen to participate equally in the economic and social life of the Nation has been facilitated by\ntheir ability to control their reproductive lives. The Constitution serves human values, and while\nthe effect of reliance on Roe cannot be exactly measured, neither can the certain costs of overruling\nRoe for people who have ordered their thinking and living around that case be dismissed.\n(f) No evolution of legal principle has left Roe\'s central rule a doctrinal anachronism discounted\nby society. If Roe is placed among the cases exemplified by Griswold v. Connecticut, 381 U.S.\n479, it is clearly in no jeopardy, since subsequent constitutional developments have neither\ndisturbed, nor do they threaten to diminish, the liberty recognized in such cases. Similarly, if Roe\nis seen as stating a rule of personal autonomy and bodily integrity, akin to cases recognizing limits\non governmental power to mandate medical treatment or to bar its rejection, this Court\'s post-Roe\ndecisions accord with Roe\'s view that a State\'s interest in the protection of life falls short of\njustifying any plenary override of individual liberty claims.\n(g) No change in Roe\'s factual underpinning has left its central holding obsolete, and none supports\nan argument for its overruling. Although subsequent maternal health care advances allow for later\n73\n\n\x0cabortions safe to the pregnant woman, and post-Roe neonatal care developments have advanced\nviability to a point somewhat earlier, these facts go only to the scheme of time limits on the\nrealization of competing interests. Thus, any later divergences from the factual premises of Roe\nhave no bearing on the validity of its central holding, that viability marks the earliest point at which\nthe State\'s interest in fetal life is constitutionally adequate to justify a legislative ban on\nnontherapeutic abortions.\n(h) A comparison between Roe and two decisional lines of comparable significance \xe2\x80\x94 the line\nidentified with Lochner v. New York, 198 U.S. 45, and the line that began with Plessy v. Ferguson,\n163 U.S. 537 \xe2\x80\x94 confirms the result reached here. Those lines were overruled by, respectively,\nWest Coast Hotel Co. v. Parrish, 330 U.S. 379, and Brown v. Board of Education, 347 U.S. 483\n\xe2\x80\x94 on the basis of facts, or an understanding of facts, changed from those which furnished the\nclaimed justifications for the earlier constitutional resolutions. The overruling decisions were\ncomprehensible to the Nation, and defensible, as the Court\'s responses to changed circumstances.\n(i) Overruling Roe\'s central holding would not only reach an unjustifiable result under stare decisis\nprinciples, but would seriously weaken the Court\'s capacity to exercise the judicial power and to\nfunction as the Supreme Court of a Nation dedicated to the rule of law.\nJustice O\'Connor, Justice Kennedy, and Justice Souter concluded in Part IV that an examination\nof Roe v. Wade, 410 U.S. 113, and subsequent cases, reveals a number of guiding principles that\nshould control the assessment of the Pennsylvania statute:\n(a) To protect the central right recognized by Roe, while at the same time accommodating the\nState\'s profound interest in potential life, the undue burden standard should be employed. An undue\nburden exists, and therefore a provision of law is invalid, if its purpose or effect is to place\nsubstantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.\n(b) Roe\'s rigid trimester framework is rejected. To promote the State\'s interest in potential life\nthroughout pregnancy, the State may take measures to ensure that the woman\'s choice is informed.\nMeasures designed to advance this interest should not be invalidated if their purpose is to persuade\nthe woman to choose childbirth over abortion. These measures must not be an undue burden on\nthe right.\n(c) As with any medical procedure, the State may enact regulations to further the health or safety\nof a woman seeking an abortion, but may not impose unnecessary health regulations that present\na substantial obstacle to a woman seeking an abortion.\n(d) Adoption of the undue burden standard does not disturb Roe\'s holding that regardless of\nwhether exceptions are made for particular circumstances, a State may not prohibit any woman\nfrom making the ultimate decision to terminate her pregnancy before viability.\n(e) Roe\'s holding that "subsequent to viability, the State in promoting its interest in the potentiality\nof human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary,\nin appropriate medical judgment, for the preservation of the life or health of the mother" is also\nreaffirmed.\n74\n\n\x0cJustice O\'Connor, Justice Kennedy, and Justice Souter delivered the opinion of the Court with\nrespect to Parts V-A and V-C, concluding that:\n1. As construed by the Court of Appeals, \xc2\xa7 3203\'s medical emergency definition is intended to\nassure that compliance with the State\'s abortion regulations would not in any way pose a significant\nthreat to a woman\'s life or health, and thus does not violate the essential holding of Roe.\n2. Section 3209\'s husband notification provision constitutes an undue burden and is therefore\ninvalid. A significant number of women will likely be prevented from obtaining an abortion just\nas surely as if Pennsylvania had outlawed the procedure entirely. The fact that \xc2\xa7 3209 may affect\nfewer than one percent of women seeking abortions does not save it from facial invalidity, since\nthe proper focus of constitutional inquiry is the group for whom the law is a restriction, not the\ngroup for whom it is irrelevant. Furthermore, it cannot be claimed that the father\'s interest in the\nfetus\' welfare is equal to the mother\'s protected liberty, since it is an inescapable biological fact\nthat state regulation with respect to the fetus will have a far greater impact on the pregnant woman\'s\nbodily integrity than it will on the husband.\nJustice O\'Connor, Justice Kennedy, and Justice Souter, joined by Justice Stevens, concluded in\nPart V-E that all of the statute\'s recordkeeping and reporting requirements, except that relating to\nspousal notice, are constitutional. The reporting provision relating to the reasons a married woman\nhas not notified her husband that she intends to have an abortion must be invalidated because it\nplaces an undue burden on a woman\'s choice.\nJustice O\'Connor, Justice Kennedy, and Justice Souter concluded in Parts V-B and V-D that:\n1. Section 3205\'s informed consent provision is not an undue burden on a woman\'s constitutional\nright to decide to terminate a pregnancy. Requiring that the woman be informed of the availability\nof information relating to the consequences to the fetus does not interfere with a constitutional\nright of privacy between a pregnant woman and her physician, since the doctor-patient relation is\nderivative of the woman\'s position, and does not underlie or override the abortion right.\nThe premise behind Akron I\'s invalidation of a waiting period between the provisions of the\ninformation deemed necessary to informed consent, and the performance of an abortion, is also\nwrong. Although \xc2\xa7 3205\'s 24-hour waiting period may make some abortions more expensive and\nless convenient, it cannot be said that it is invalid on the present record and in the context of this\nfacial challenge.\n2. Section 3206\'s one parent consent requirement and judicial bypass procedure are constitutional.\nJustice Blackmun concluded that application of the strict scrutiny standard of review required by\nthis Court\'s abortion precedents results in the invalidation of all the challenged provisions in the\nPennsylvania statute, including the reporting requirements, and therefore concurred in the\njudgment that the requirement that a pregnant woman report her reasons for failing to provide\nspousal notice is unconstitutional.\nThe Chief Justice, joined by Justice White, Justice Scalia, and Justice Thomas, concluded that:\n75\n\n\x0c1. Although Roe v. Wade, 410 U.S. 113, is not directly implicated by the Pennsylvania statute,\nwhich simply regulates and does not prohibit abortion, a reexamination of the "fundamental right"\nRoe accorded to a woman\'s decision to abort a fetus, with the concomitant requirement that any\nstate regulation of abortion survive "strict scrutiny," is warranted by the confusing and uncertain\nstate of this Court\'s post-Roe decisional law.\n2. The Roe Court reached too far when it analogized the right to abort a fetus to the rights involved\nin Pierce v. Society of Sisters, 268 U.S. 510; Meyer v. Nebraska, 262 U.S. 390; Loving v. Virginia,\n388 U.S. 1; and Griswold v. Connecticut, 381 U.S. 479, and thereby deemed the right to abortion\nto be "fundamental." None of these decisions endorsed an all-encompassing "right of privacy," as\nRoe claimed.\n3. The undue burden standard adopted by the joint opinion of Justices O\'Connor, Kennedy, and\nSouter has no basis in constitutional law, and will not result in the sort of simple limitation, easily\napplied, which the opinion anticipates. The standard presents nothing more workable than the\ntrimester framework the joint opinion discards, and will allow the Court, under the guise of the\nConstitution, to continue to impart its own preferences on the States in the form of a complex\nabortion code.\n4. The correct analysis is that set forth by the plurality opinion in Webster: A woman\'s interest in\nhaving an abortion is a form of liberty protected by the Due Process Clause, but States may regulate\nabortion procedures in ways rationally related to a legitimate state interest.\n5. Section 3205\'s requirements are rationally related to the State\'s legitimate interest in assuring\nthat a woman\'s consent to an abortion be fully informed. The requirement that a physician disclose\ncertain information about the abortion procedure and its risks and alternatives is not a large burden,\nand is clearly related to maternal health and the State\'s interest in informed consent. The\nrequirement that information be provided about the availability of paternal child support and statefunded alternatives is also related to the State\'s informed consent interest and furthers the State\'s\ninterest in preserving unborn life. The waiting period helps ensure that a woman\'s decision to abort\nis a well-considered one, and rationally furthers the State\'s legitimate interest in maternal health\nand in unborn life. It may delay, but does not prohibit, abortions; and both it and the informed\nconsent provisions do not apply in medical emergencies.\n6. The statute\'s parental consent provision is entirely consistent with this Court\'s previous decisions\ninvolving such requirements.\n7. Section 3214(a)\'s requirement that abortion facilities file a report on each abortion is\nconstitutional because it rationally furthers the State\'s legitimate interests in advancing the state of\nmedical knowledge concerning maternal health and prenatal life, in gathering statistical\ninformation with respect to patients, and in ensuring compliance with other provisions of the Act,\nwhile keeping the reports completely confidential.\nJustice Scalia, joined by The Chief Justice, Justice White, and Justice Thomas, concluded that a\nwoman\'s decision to abort her unborn child is not a constitutionally protected "liberty" because (1)\n76\n\n\x0cthe Constitution says absolutely nothing about it, and (2) the longstanding traditions of American\nsociety have permitted it to be legally proscribed.\nO\'Connor, Kennedy, and Souter, JJ., announced the judgment of the Court and delivered the\nopinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, in which Blackmun and\nStevens, JJ., joined, an opinion with respect to Part V-E, in which Stevens, J., joined, and an\nopinion with respect to Parts IV, V-B, and V-D. Stevens, J., filed an opinion concurring in part\nand dissenting in part. Blackmun, J., filed an opinion concurring in part, concurring in the judgment\nin part, and dissenting in part. Rehnquist, C. J., filed an opinion concurring in the judgment in part\nand dissenting in part, in which White, Scalia, and Thomas, JJ., joined. Scalia, J., filed an opinion\nconcurring in the judgment in part and dissenting in part, in which Rehnquist, C. J., and White and\nThomas, JJ., joined.\n\nTinker v. Des Moines Independent Community School District\n393 U.S. 503 (1969)\n(Case Syllabus edited by the Author)\nMR. JUSTICE FORTAS delivered the opinion of the Court.\nPetitioner John F. Tinker, 15 years old, and petitioner Christopher Eckhardt, 16 years old, attended\nhigh schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John\'s sister, was a 13-year-old\nstudent in junior high school.\nIn December 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt\nhome. The group determined to publicize their objections to the hostilities in Vietnam and their\nsupport for a truce by wearing black armbands during the holiday season and by fasting on\nDecember 16 and New Year\xe2\x80\x99s Eve. Petitioners and their parents had previously engaged in similar\nactivities, and they decided to participate in the program.\nThe principals of the Des Moines schools became aware of the plan to wear armbands. On\nDecember 14, 1965, they met and adopted a policy that any student wearing an armband to school\nwould be asked to remove it, and, if he refused, he would be suspended until he returned without\nthe armband. Petitioners were aware of the regulation that the school authorities adopted.\nOn December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker\nwore his armband the next day. They were all sent home and suspended from school until they\nwould come back without their armbands. They did not return to school until after the planned\nperiod for wearing armbands had expired \xe2\x80\x94 that is, until after New Year\'s Day.\nThis complaint was filed in the United States District Court by petitioners, through their fathers,\nunder \xc2\xa7 1983 of Title 42 of the United States Code. It prayed for an injunction restraining the\nrespondent school officials and the respondent members of the board of directors of the school\ndistrict from disciplining the petitioners, and it sought nominal damages. After an evidentiary\nhearing, the District Court dismissed the complaint. It upheld the constitutionality of the school\n77\n\n\x0cauthorities\' action on the ground that it was reasonable in order to prevent disturbance of school\ndiscipline. 258 F.Supp. 971 (1966). The court referred to, but expressly declined to follow, the\nFifth Circuit\'s holding in a similar case that the wearing of symbols like the armbands cannot be\nprohibited unless it "materially and substantially interfere[s] with the requirements of appropriate\ndiscipline in the operation of the school." Burnside v. Byars, 363 F.2d 744, 749 (1966).\nOn appeal, the Court of Appeals for the Eighth Circuit considered the case en banc. The court was\nequally divided, and the District Court\'s decision was accordingly affirmed without opinion. 383\nF.2d 988 (1967). We granted certiorari. 390 U.S. 942 (1968).\nI\nThe District Court recognized that the wearing of an armband for the purpose of expressing certain\nviews is the type of symbolic act that is within the Free Speech Clause of the First Amendment.\nSee West Virginia v. Barnette, 319 U.S. 624 (1943); Stromberg v. California, 283 U.S. 359 (1931).\nCf. Thornhill v. Alabama, 310 U.S. 88(1940); Edwards v. South Carolina, 372 U.S. 229 (1963);\nBrown v. Louisiana, 383 U.S. 131 (1966).\nAs we shall discuss, the wearing of armbands in the circumstances of this case was entirely\ndivorced from actually or potentially disruptive conduct by those participating in it. It was closely\nakin to "pure speech" which, we have repeatedly held, is entitled to comprehensive protection\nunder the First Amendment. Cf. Cox v. Louisiana, 379 U.S. 536, 555 (1965); Adderley v. Florida,\n385 U.S. 39 (1966).\nFirst Amendment rights, applied in light of the special characteristics of the school environment,\nare available to teachers and students. It can hardly be argued that either students or teachers shed\ntheir constitutional rights to freedom of speech or expression at the schoolhouse gate.\nIn West Virginia v. Barnette, supra, this Court held that, under the First Amendment, the student\nin public school may not be compelled to salute the flag. Speaking through Mr. Justice Jackson,\nthe Court said:\nThe Fourteenth Amendment, as now applied to the States, protects the citizen against the State\nitself and all of its creatures \xe2\x80\x94 Boards of Education not accepted.\nOn the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive\nauthority of the States and of school officials, consistent with fundamental constitutional\nsafeguards, to prescribe and control conduct in the schools.\nII\nThe problem posed by the present case does not relate to regulation of the length of skirts or the\ntype of clothing, to hair style, or deportment. It does not concern aggressive, disruptive action, or\neven group demonstrations. Our problem involves direct, primary First Amendment rights akin to\n"pure speech." The school officials banned, and sought to punish, petitioners for a silent, passive\nexpression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners.\nThere is here no evidence whatever of petitioners\' interference, actual or nascent, with the schools\'\nwork or of collision with the rights of other students to be secure and to be let alone. Accordingly,\n78\n\n\x0cthis case does not concern speech or action that intrudes upon the work of the schools or the rights\nof other students.\nOnly a few of the 18,000 students in the school system wore the black armbands. Only five students\nwere suspended for wearing them. There is no indication that the work of the schools or any class\nwas disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing\narmbands, but there were no threats or acts of violence on school premises.\nThe District Court concluded that the action of the school authorities was reasonable because it\nwas based upon their fear of a disturbance from the wearing of the armbands. But, in our system,\nundifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom\nof expression. Any departure from absolute regimentation may cause trouble. Any variation from\nthe majority\'s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the\ncampus, that deviates from the views of another person may start an argument or cause a\ndisturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1\n(1949); and our history says that it is this sort of hazardous freedom \xe2\x80\x94 this kind of openness \xe2\x80\x94\nthat is the basis of our national strength and of the independence and vigor of Americans who grow\nup and live in this relatively permissive, often disputatious, society.\nIn order for the State in the person of school officials to justify prohibition of a particular\nexpression of opinion, it must be able to show that its action was caused by something more than\na mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular\nviewpoint\nIn the present case, the District Court made no such finding, and our independent examination of\nthe record fails to yield evidence that the school authorities had reason to anticipate that the\nwearing of the armbands would substantially interfere with the work of the school or impinge upon\nthe rights of other students.\nOn the contrary, the action of the school authorities appears to have been based upon an urgent\nwish to avoid the controversy which might result from the expression, even by the silent symbol\nof armbands, of opposition to this Nation\'s part in the conflagration in Vietnam. It is revealing, in\nthis respect, that the meeting at which the school principals decided to issue the contested\nregulation was called in response to a student\'s statement to the journalism teacher in one of the\nschools that he wanted to write an article on Vietnam and have it published in the school paper.\n(The student was dissuaded.)\nIt is also relevant that the school authorities did not purport to prohibit the wearing of all symbols\nof political or controversial significance. The record shows that students in some of the schools\nwore buttons relating to national political campaigns, and some even wore the Iron Cross,\ntraditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend\nto these. Instead, a particular symbol \xe2\x80\x94 black armbands worn to exhibit opposition to this Nation\'s\ninvolvement in Vietnam \xe2\x80\x94 was singled out for prohibition.\nSchool officials do not possess absolute authority over their students. Students in school, as well\nas out of school, are "persons" under our Constitution. They are possessed of fundamental rights\n79\n\n\x0cwhich the State must respect, just as they themselves must respect their obligations to the State. In\nour system, students may not be regarded as closed-circuit recipients of only that which the State\nchooses to communicate. They may not be confined to the expression of those sentiments that are\nofficially approved. In the absence of a specific showing of constitutionally valid reasons to\nregulate their speech, students are entitled to freedom of expression of their views.\nUnder our Constitution, free speech is not a right that is given only to be so circumscribed that it\nexists in principle, but not in fact. Freedom of expression would not truly exist if the right could\nbe exercised only in an area that a benevolent government has provided as a safe haven for\ncrackpots. The Constitution says that Congress (and the States) may not abridge the right to free\nspeech. This provision means what it says. We properly read it to permit reasonable regulation of\nspeech-connected activities in carefully restricted circumstances. But we do not confine the\npermissible exercise of First Amendment rights to a telephone booth or the four corners of a\npamphlet, or to supervised and ordained discussion in a school classroom.\nWe express no opinion as to the form of relief which should be granted, this being a matter for the\nlower courts to determine. We reverse and remand for further proceedings consistent with this\nopinion.\n\nNew Jersey v. T.L.O.\n469 U.S. 325 (1985)\n(Case Syllabus edited by the Author)\nA teacher at a New Jersey high school, upon discovering respondent, then a 14-year-old freshman,\nand her companion, smoking cigarettes in a school lavatory in violation of a school rule, took them\nto the Principal\'s office, where they met with the Assistant Vice Principal. When respondent, in\nresponse to the Assistant Vice Principal\'s questioning, denied that she had been smoking and\nclaimed that she did not smoke at all, the Assistant Vice Principal demanded to see her purse. Upon\nopening the purse, he found a pack of cigarettes and also noticed a package of cigarette rolling\npapers that are commonly associated with the use of marihuana. He then proceeded to search the\npurse thoroughly and found some marihuana, a pipe, plastic bags, a fairly substantial amount of\nmoney, an index card containing a list of students who owed respondent money, and two letters\nthat implicated her in marihuana dealing.\nThereafter, the State brought delinquency charges against respondent in the Juvenile Court, which,\nafter denying respondent\'s motion to suppress the evidence found in her purse, held that the Fourth\nAmendment applied to searches by school officials, but that the search in question was a reasonable\none, and adjudged respondent to be a delinquent. The Appellate Division of the New Jersey\nSuperior Court affirmed the trial court\'s finding that there had been no Fourth Amendment\nviolation but vacated the adjudication of delinquency and remanded on other grounds. The New\nJersey Supreme Court reversed and ordered the suppression of the evidence found in respondent\'s\npurse, holding that the search of the purse was unreasonable.\n\n80\n\n\x0cHeld:\nThe Fourth Amendment\'s prohibition on unreasonable searches and seizures applies to searches\nconducted by public school officials, and is not limited to searches carried out by law enforcement\nofficers. Nor are school officials exempt from the Amendment\'s dictates by virtue of the special\nnature of their authority over schoolchildren.\nIn carrying out searches and other functions pursuant to disciplinary policies mandated by state\nstatutes, school officials act as representatives of the State, not merely as surrogates for the parents\nof students, and they cannot claim the parents\xe2\x80\x99 immunity from the Fourth Amendment\'s strictures.\nSchoolchildren have legitimate expectations of privacy. They may find it necessary to carry with\nthem a variety of legitimate, non-contraband items, and there is no reason to conclude that they\nhave necessarily waived all rights to privacy in such items by bringing them onto school grounds.\nBut striking the balance between schoolchildren\'s legitimate expectations of privacy, and the\nschool\'s equally legitimate need to maintain an environment in which learning can take place,\nrequires some easing of the restrictions to which searches by public authorities are ordinarily\nsubject. Thus, school officials need not obtain a warrant before searching a student who is under\ntheir authority. Moreover, school officials need not be held subject to the requirement that searches\nbe based on probable cause to believe that the subject of the search has violated or is violating the\nlaw. Rather, the legality of a search of a student should depend simply on the reasonableness, under\nall the circumstances, of the search.\nDetermining the reasonableness of any search involves a determination of whether the search was\njustified at its inception and whether, as conducted, it was reasonably related in scope to the\ncircumstances that justified the interference in the first place. Under ordinary circumstances, the\nsearch of a student by a school official will be justified at its inception where there are reasonable\ngrounds for suspecting that the search will turn up evidence that the student has violated, or is\nviolating, either the law or the rules of the school. And such a search will be permissible in its\nscope when the measures adopted are reasonably related to the objectives of the search, and not\nexcessively intrusive in light of the student\'s age and sex and the nature of the infraction.\nUnder the above standard, the search in this case was not unreasonable for Fourth Amendment\npurposes. First, the initial search for cigarettes was reasonable. The report to the Assistant Vice\nPrincipal that respondent had been smoking warranted a reasonable suspicion that she had\ncigarettes in her purse, and thus the search was justified despite the fact that the cigarettes, if found,\nwould constitute "mere evidence" of a violation of the no-smoking rule. Second, the discovery of\nthe rolling papers then gave rise to a reasonable suspicion that respondent was carrying marihuana\nas well as cigarettes in her purse, and this suspicion justified the further exploration that turned up\nmore evidence of drug-related activities.\n94 N.J. 331, 463 A.2d 934, reversed.\nWHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL,\nREHNQUIST, and O\'CONNOR, JJ., joined, and in Part II of which BRENNAN, MARSHALL,\nand STEVENS, JJ., joined. POWELL, J., filed a concurring opinion, in which O\'CONNOR, J.,\njoined, BLACKMUN, J., filed an opinion concurring in the judgment, BRENNAN, J., filed an\n81\n\n\x0copinion concurring in part and dissenting in part, in which MARSHALL, J., joined, STEVENS,\nJ., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, and\nin Part I of which BRENNAN, J., joined,.\n\nMORSE v. FREDERICK\n551 U.S. 393 (2007)\n(Case Syllabus edited by the Author)\nAt a school-sanctioned and school-supervised event, petitioner Morse, the high school principal,\nsaw students unfurl a banner stating, \xe2\x80\x9cBONG HITS 4 JESUS,\xe2\x80\x9d which she regarded as promoting\nillegal drug use. Consistent with established school policy prohibiting such messages at school\nevents, Morse directed the students to take down the banner. When one of the students who had\nbrought the banner to the event \xe2\x80\x94 respondent Frederick \xe2\x80\x94 refused, Morse confiscated the banner\nand later suspended him. The school superintendent upheld the suspension, explaining, inter alia,\nthat Frederick was disciplined because his banner appeared to advocate illegal drug use in violation\nof school policy. Petitioner school board also upheld the suspension.\nFrederick filed suit under 42 U. S. C. \xc2\xa7 1983, alleging that the school board and Morse had violated\nhis First Amendment rights. The District Court granted petitioner\xe2\x80\x99s summary judgment, ruling that\nthey were entitled to qualified immunity, and that they had not infringed Frederick\xe2\x80\x99s speech rights.\nThe Ninth Circuit reversed. Accepting that Frederick acted during a school-authorized activity and\nthat the banner expressed a positive sentiment about marijuana use, the court nonetheless found a\nFirst Amendment violation because the school punished Frederick without demonstrating that his\nspeech threatened substantial disruption. It also concluded that Morse was not entitled to qualified\nimmunity because Frederick\xe2\x80\x99s right to display the banner was so clearly established that a\nreasonable principal in Morse\xe2\x80\x99s position would have understood that her actions were\nunconstitutional.\nHeld:\nBecause schools may take steps to safeguard those entrusted to their care from speech that can\nreasonably be regarded as encouraging illegal drug use, the school officials in this case did not\nviolate the First Amendment by confiscating the pro-drug banner and suspending Frederick.\n(a) Frederick\xe2\x80\x99s argument that this is not a school speech case is rejected. The event in question\noccurred during normal school hours and was sanctioned by Morse as an approved social event at\nwhich the district\xe2\x80\x99s student-conduct rules expressly applied. Teachers and administrators were\namong the students and were charged with supervising them. Frederick stood among other students\nacross the street from the school and directed his banner toward the school, making it plainly\nvisible to most students. Under these circumstances, Frederick cannot claim he was not at school.\n(b) The Court agrees with Morse that those who viewed the banner would interpret it as advocating\nor promoting illegal drug use, in violation of school policy. At least two interpretations of the\nbanner\xe2\x80\x99s words \xe2\x80\x94 that they constitute an imperative encouraging viewers to smoke marijuana or,\n82\n\n\x0calternatively, that they celebrate drug use \xe2\x80\x94 demonstrate that the sign promoted such use. This\npro-drug interpretation gains further plausibility from the paucity of alternative meanings the\nbanner might bear.\n(c) A principal may, consistent with the First Amendment, restrict student speech at a school event,\nwhen that speech is reasonably viewed as promoting illegal drug use. In Tinker v. Des Moines\nIndependent Community School Dist., 393 U.S. 503, the Court declared, in holding that a policy\nprohibiting high school students from wearing antiwar armbands violated the First Amendment,\nthat student expression may not be suppressed unless school officials reasonably conclude that it\nwill \xe2\x80\x9cmaterially and substantially disrupt the work and discipline of the school.\xe2\x80\x9d The Court in\nBethel School Dist. No. 403 v. Fraser, 478 U. S. 675, however, upheld the suspension of a student\nwho delivered a high school assembly speech employing \xe2\x80\x9can elaborate, graphic, and explicit sexual\nmetaphor.\nAnalyzing the case under Tinker, the lower courts had found no disruption, and therefore no basis\nfor discipline. 478 U. S., at 679\xe2\x80\x93680. This Court reversed, holding that the school was \xe2\x80\x9cwithin its\npermissible authority in imposing sanctions \xe2\x80\xa6 in response to [the student\xe2\x80\x99s] offensively lewd and\nindecent speech.\xe2\x80\x9d\nTwo basic principles may be distilled from Fraser. First, it demonstrates that \xe2\x80\x9cthe constitutional\nrights of students in public school are not automatically coextensive with the rights of adults in\nother settings.\xe2\x80\x9d Had Fraser delivered the same speech in a public forum outside the school context,\nhe would have been protected. In school, however, his First Amendment rights were circumscribed\n\xe2\x80\x9cin light of the special characteristics of the school environment.\xe2\x80\x9d Tinker, supra.\nSecond, Fraser established that Tinker\xe2\x80\x99s mode of analysis is not absolute, since the Fraser Court\ndid not conduct the \xe2\x80\x9csubstantial disruption\xe2\x80\x9d analysis. Subsequently, the Court has held in the\nFourth Amendment context that \xe2\x80\x9cwhile children assuredly do not \xe2\x80\x98shed their constitutional rights\n\xe2\x80\xa6 at the schoolhouse gate,\xe2\x80\x99 \xe2\x80\xa6 the nature of those rights is what is appropriate for children in\nschool,\xe2\x80\x9d Vernonia School Dist. 47J v. Acton, 515 U. S. 646, and has recognized that deterring drug\nuse by schoolchildren is an \xe2\x80\x9cimportant \xe2\x80\x94 indeed, perhaps compelling\xe2\x80\x9d interest.\nDrug abuse by the Nation\xe2\x80\x99s youth is a serious problem. For example, Congress has declared that\npart of a school\xe2\x80\x99s job is educating students about the dangers of drug abuse, see, e.g., the Safe and\nDrug-Free Schools and Communities Act of 1994, and petitioners and many other schools have\nadopted policies aimed at implementing this message. Student speech celebrating illegal drug use\nat a school event, in the presence of school administrators and teachers, poses a particular challenge\nfor school officials working to protect those entrusted to their care. The \xe2\x80\x9cspecial characteristics of\nthe school environment,\xe2\x80\x9d Tinker, 393 U. S., at 506, and the governmental interest in stopping\nstudent drug abuse allow schools to restrict student expression that they reasonably regard as\npromoting such abuse. Id., at 508, 509, distinguished. The issue regarding qualified immunity does\nnot need to be resolved since the principal did not violate the student\xe2\x80\x99s rights.\n439 F. 3d 1114, reversed and remanded.\n\n83\n\n\x0cRoberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito,\nJJ., joined. Thomas, J., filed a concurring opinion. Alito, J., filed a concurring opinion, in which\nKennedy, J., joined. Breyer, J., filed an opinion concurring in the judgment in part and dissenting\nin part. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined.\n\nSAFFORD UNIFIED SCHOOL DISTRICT #1 et al. v. REDDING\n557 US 364 (2009)\n(Cases Syllabus edited by the Author)\nAfter escorting 13-year-old Savana Redding from her middle school classroom to his office,\nAssistant Principal Wilson showed her a day planner containing knives and other contraband. She\nadmitted owning the planner, but said that she had lent it to her friend Marissa and that the\ncontraband was not hers. He then produced four prescription-strength, and one over-the-counter,\npain relief pills, all of which are banned under school rules without advance permission. She denied\nknowledge of them, but Wilson said that he had a report that she was giving pills to fellow students.\nShe denied it and agreed to let him search her belongings.\nHe and Helen Romero, an administrative assistant, searched Savana\xe2\x80\x99s backpack, finding nothing.\nWilson then had Romero take Savana to the school nurse\xe2\x80\x99s office to search her clothes for pills.\nAfter Romero and the nurse, Peggy Schwallier, had Savana remove her outer clothing, they told\nher to pull her bra out and shake it, and to pull out the elastic on her underpants, thus exposing her\nbreasts and pelvic area to some degree. No pills were found.\nSavana\xe2\x80\x99s mother filed suit against petitioner school district (Safford), Wilson, Romero, and\nSchwallier, alleging that the strip search violated Savana\xe2\x80\x99s Fourth Amendment rights.\nClaiming qualified immunity, the individuals (hereinafter petitioners) moved for summary\njudgment. The District Court granted the motion, finding that there was no Fourth Amendment\nviolation, and the en banc Ninth Circuit reversed. Following the protocol for evaluating qualified\nimmunity claims, see Saucier v. Katz, 533 U. S. 194, the court held that the strip search was\nunjustified under the Fourth Amendment test for searches of children by school officials set out in\nNew Jersey v. T. L. O., 469 U. S. 325. It then applied the test for qualified immunity. Finding that\nSavana\xe2\x80\x99s right was clearly established at the time of the search, it reversed the summary judgment\nas to Wilson, but affirmed as to Schwallier and Romero because they were not independent\ndecision makers.\nHeld:\nThe search of Savana\xe2\x80\x99s underwear violated the Fourth Amendment.\n1. For school searches, \xe2\x80\x9cthe public interest is best served by a Fourth Amendment standard of\nreasonableness that stops short of probable cause.\xe2\x80\x9d T.L.O., 469 U. S., at 341. Under the resulting\nreasonable suspicion standard, a school search \xe2\x80\x9cwill be permissible \xe2\x80\xa6 when the measures adopted\nare reasonably related to the objectives of the search and not excessively intrusive in light of the\n84\n\n\x0cage and sex of the student and the nature of the infraction.\xe2\x80\x9d The required knowledge component\nof reasonable suspicion for a school administrator\xe2\x80\x99s evidence search is that it raises a moderate\nchance of finding evidence of wrongdoing.\nWilson had sufficient suspicion to justify searching Savana\xe2\x80\x99s backpack and outer clothing. A week\nearlier, a student, Jordan, had told the principal and Wilson that students were bringing drugs and\nweapons to school and that he had gotten sick from some pills. On the day of the search, Jordan\ngave Wilson a pill that he said came from Marissa. Learning that the pill was prescription strength,\nWilson called Marissa out of class and was handed the day planner. Once in his office, Wilson,\nwith Romero present, had Marissa turn out her pockets and open her wallet, producing, inter alia,\nan over-the-counter pill that Marissa claimed was Savana\xe2\x80\x99s. She also denied knowing about the\nday planner\xe2\x80\x99s contents. Wilson did not ask her when she received the pills from Savana or where\nSavana might be hiding them.\nAfter a search of Marissa\xe2\x80\x99s underwear by Romero and Schwallier revealed no additional pills,\nWilson called Savana into his office. He showed her the day planner and confirmed her relationship\nwith Marissa. He knew that the girls had been identified as part of an unusually rowdy group at a\nschool dance, during which alcohol and cigarettes were found in the girls\xe2\x80\x99 bathroom. He had other\nreasons to connect them with this contraband, for Jordan had told the principal that before the\ndance, he had attended a party at Savana\xe2\x80\x99s house where alcohol was served. Thus, Marissa\xe2\x80\x99s\nstatement that the pills came from Savana was sufficiently plausible to warrant suspicion that\nSavana was involved in pill distribution. A student who is reasonably suspected of giving out\ncontraband pills is reasonably suspected of carrying them on her person and in her backpack.\nLooking into Savana\xe2\x80\x99s bag, in her presence and in the relative privacy of Wilson\xe2\x80\x99s office, was not\nexcessively intrusive, any more than Romero\xe2\x80\x99s subsequent search of her outer clothing.\nBecause the suspected facts pointing to Savana did not indicate that the drugs presented a danger\nto students or were concealed in her underwear, Wilson did not have sufficient suspicion to warrant\nextending the search to the point of making Savana pull out her underwear. Romero and Schwallier\nsaid that they did not see anything when Savana pulled out her underwear, but a strip search and\nits Fourth Amendment consequences are not defined by who was looking and how much was seen.\nSavana\xe2\x80\x99s actions in their presence necessarily exposed her breasts and pelvic area to some degree,\nand both subjective and reasonable societal expectations of personal privacy support the treatment\nof such a search as categorically distinct, requiring distinct elements of justification on the part of\nschool authorities for going beyond a search of outer clothing and belongings.\nSavana\xe2\x80\x99s subjective expectation of privacy is inherent in her account of it as embarrassing,\nfrightening, and humiliating. The reasonableness of her expectation is indicated by the common\nreaction of other young people similarly searched, whose adolescent vulnerability intensifies the\nexposure\xe2\x80\x99s patent intrusiveness. Its indignity does not outlaw the search, but it does implicate the\nrule that \xe2\x80\x9cthe search [be] \xe2\x80\x98reasonably related in scope to the circumstances which justified the\ninterference in the first place.\xe2\x80\x99\xe2\x80\x9d T. L.O., supra, at 341. Here, the content of the suspicion failed to\nmatch the degree of intrusion. Because Wilson knew that the pills were common pain relievers, he\nmust have known of their nature and limited threat and had no reason to suspect that large amounts\nwere being passed around, or that individual students had great quantities. Nor could he have\nsuspected that Savana was hiding common painkillers in her underwear.\n85\n\n\x0cWhen suspected facts must support the categorically extreme intrusiveness of a search down to an\nadolescent\xe2\x80\x99s body, petitioners\xe2\x80\x99 general belief that students hide contraband in their clothing falls\nshort; a reasonable search that extensive calls for suspicion that it will succeed. Non-dangerous\nschool contraband does not conjure up the specter of stashes in intimate places, and there is no\nevidence of such behavior at the school; neither Jordan nor Marissa suggested that Savana was\ndoing that, and the search of Marissa yielded nothing. Wilson also never determined when Marissa\nhad received the pills from Savana; had it been a few days before, that would weigh heavily against\nany reasonable conclusion that Savana presently had the pills on her person, much less in her\nunderwear.\n2. Although the strip search violated Savana\xe2\x80\x99s Fourth Amendment rights, petitioners Wilson,\nRomero, and Schwallier are protected from liability by qualified immunity because \xe2\x80\x9cclearly\nestablished law [did] not show that the search violated the Fourth Amendment ,\xe2\x80\x9d Pearson v.\nCallahan, 555 U. S. 223, The intrusiveness of the strip search here cannot, under T.L O., be seen\nas justifiably related to the circumstances, but lower court cases viewing school strip searches\ndifferently are numerous enough, with well-reasoned majority and dissenting opinions, to counsel\ndoubt about the clarity with which the right was previously stated.\n3. The issue of petitioner Safford\xe2\x80\x99s liability under Monell v. New York City Dept. of Social Servs.,\n436 U. S. 658, should be addressed on remand.\n531 F. 3d 1071, affirmed in part, reversed in part, and remanded.\nSouter, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Breyer,\nand Alito, JJ., joined, and in which Stevens and Ginsburg, JJ., joined as to Parts I\xe2\x80\x93III. Stevens, J.,\nfiled an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined. Ginsburg,\nJ., filed an opinion concurring in part and dissenting in part. Thomas, J., filed an opinion concurring\nin the judgment in part and dissenting in part.\n\nDISTRICT OF COLUMBIA v. HELLER\n554 US 570 (2008)\n(Syllabus Version edited by the Author)\nDistrict of Columbia law bans handgun possession by making it a crime to carry an unregistered\nfirearm and prohibiting the registration of handguns; provides separately that no person may carry\nan unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires\nresidents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or\nsimilar device.\nRespondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at\nhome, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin\nthe city from enforcing the ban on handgun registration, the licensing requirement insofar as it\n86\n\n\x0cprohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as\nit prohibits the use of functional firearms in the home.\nThe District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second\nAmendment protects an individual\xe2\x80\x99s right to possess firearms, and that the city\xe2\x80\x99s total ban on\nhandguns, as well as its requirement that firearms in the home be kept nonfunctional even when\nnecessary for self-defense, violated that right.\nHeld:\n1. The Second Amendment protects an individual\xe2\x80\x99s right to possess a firearm unconnected with\nservice in a militia, and to use that arm for traditionally lawful purposes, such as self-defense\nwithin the home.\nThe Amendment\xe2\x80\x99s prefatory clause announces a purpose, but does not limit or expand the scope\nof the second part, the operative clause. The operative clause\xe2\x80\x99s text and history demonstrate that it\nconnotes an individual right to keep and bear arms.\nThe prefatory clause comports with the Court\xe2\x80\x99s interpretation of the operative clause. The \xe2\x80\x9cmilitia\xe2\x80\x9d\ncomprised all males physically capable of acting in concert for the common defense. The\nAntifederalists feared that the Federal Government would disarm the people in order to disable\nthis citizens\xe2\x80\x99 militia, enabling a politicized standing army or a select militia to rule. The response\nwas to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so\nthat the ideal of a citizens\xe2\x80\x99 militia would be preserved.\nThe Court\xe2\x80\x99s interpretation is confirmed by analogous arms-bearing rights in state constitutions that\npreceded and immediately followed the Second Amendment.\nThe Second Amendment \xe2\x80\x99s drafting history, while of dubious interpretive worth, reveals three state\nSecond Amendment proposals that unequivocally referred to an individual right to bear arms.\nInterpretation of the Second Amendment by scholars, courts, and legislators, from immediately\nafter its ratification through the late 19th century, also supports the Court\xe2\x80\x99s conclusion.\nNone of the Court\xe2\x80\x99s precedents forecloses the Court\xe2\x80\x99s interpretation. Neither United States v.\nCruikshank, 92 U. S. 542, nor Presser v. Illinois, 116 U. S. 252, refutes the individual-rights\ninterpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms\nto militia purposes, but rather limits the type of weapon to which the right applies to those used by\nthe militia, i.e., those in common use for lawful purposes.\n2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and\ncarry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example,\nconcealed weapons prohibitions have been upheld under the Amendment or state analogues. The\nCourt\xe2\x80\x99s opinion should not be taken to cast doubt on longstanding prohibitions on the possession\nof firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive\nplaces such as schools and government buildings, or laws imposing conditions and qualifications\non the commercial sale of arms. Miller\xe2\x80\x99s holding that the sorts of weapons protected are those \xe2\x80\x9cin\n\n87\n\n\x0ccommon use at the time\xe2\x80\x9d finds support in the historical tradition of prohibiting the carrying of\ndangerous and unusual weapons.\n3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second\nAmendment. The District\xe2\x80\x99s total ban on handgun possession in the home amounts to a prohibition\non an entire class of \xe2\x80\x9carms\xe2\x80\x9d that Americans overwhelmingly choose for the lawful purpose of selfdefense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional\nrights, this prohibition \xe2\x80\x94 in the place where the importance of the lawful defense of self, family,\nand property is most acute \xe2\x80\x94 would fail constitutional muster. Similarly, the requirement that any\nlawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for\ncitizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.\nBecause Heller conceded at oral argument that the D. C. licensing law is permissible if it is not\nenforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for\nrelief and does not address the licensing requirement. Assuming he is not disqualified from\nexercising Second Amendment rights, the District must permit Heller to register his handgun and\nmust issue him a license to carry it in the home.\n478 F. 3d 370, affirmed.\nScalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and\nAlito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer,\nJJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ.,\njoined.\n\nMcDONALD v. CITY OF CHICAGO, ILLINOIS\n561 US 742 (2010)\n(Case Syllabus edited by the Author)\nJustice Alito delivered the opinion of the Court.\nTwo years ago, in District of Columbia v. Heller, 554 U. S. 570 (2008), this Court held that the\nSecond Amendment protects the right to keep and bear arms for the purpose of self-defense, and\nstruck down a District of Columbia law that banned the possession of handguns in the home.\nChicago (hereinafter City) and the village of Oak Park, a Chicago suburb, have laws effectively\nbanning handgun possession by almost all private citizens.\nAfter Heller, petitioners filed this federal suit against the City, which was consolidated with two\nrelated actions, alleging that the City\xe2\x80\x99s handgun ban has left them vulnerable to criminals. They\nsought a declaration that the bans, and several related City ordinances, violate the Second and\nFourteenth Amendments. Rejecting petitioners\xe2\x80\x99 argument that the ordinances are unconstitutional,\nthe court noted that the Seventh Circuit previously had upheld the constitutionality of a handgun\nban, that Heller had explicitly refrained from opining on whether the Second Amendment applied\n88\n\n\x0cto the States, and that the court had a duty to follow established Circuit precedent. The Seventh\nCircuit affirmed.\nHeld:\nThe Seventh Circuit judgment is reversed, and the case is remanded. The Fourteenth Amendment\nincorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the\npurpose of self-defense.\n(a) Petitioners contend that the Fourteenth Amendment\xe2\x80\x99s Due Process Clause incorporates the\nSecond Amendment right. Chicago and Oak Park (municipal respondents) maintain that a right set\nout in the Bill of Rights applies to the States only when it is an indispensable attribute of any\n\xe2\x80\x9ccivilized\xe2\x80\x9d legal system. If it is possible to imagine a civilized country that does not recognize the\nright, municipal respondents assert, that right is not protected by due process. And since there are\ncivilized countries that ban or strictly regulate the private possession of handguns, they maintain\nthat due process does not preclude such measures.\n(b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal\nGovernment, not to the States, but the Constitutional Amendments adopted in the Civil War\xe2\x80\x99s\naftermath fundamentally altered the federal system.\n(c) Whether the Second Amendment right to keep and bear arms applies to the States is considered\nin light of the Court\xe2\x80\x99s precedents applying the Bill of Rights\xe2\x80\x99 protections to the States.\n(1) In the late 19th century, the Court began to hold that the Due Process Clause prohibits\nthe States from infringing Bill of Rights protections.\n(2) Justice Black championed the alternative theory that the Fourteenth Amendment totally\nincorporated all of the Bill of Rights\xe2\x80\x99 provisions, but the Court never has embraced that theory.\n(3) The Court eventually moved in the direction of adopting a theory of selective\nincorporation by which the Due Process Clause incorporates particular rights contained in the first\neight Amendments. The Court clarified that the governing standard is whether a particular Bill of\nRights protection is fundamental to our Nation\xe2\x80\x99s particular scheme of ordered liberty and system\nof justice. The Court eventually held that almost all of the Bill of Rights\xe2\x80\x99 guarantees met the\nrequirements for protection under the Due Process Clause. The Court also held that Bill of Rights\nprotections must \xe2\x80\x9call \xe2\x80\xa6 be enforced against the States under the Fourteenth Amendment according\nto the same standards that protect those personal rights against federal encroachment.\xe2\x80\x9d Under this\napproach, the Court overruled earlier decisions holding that particular Bill of Rights guarantees or\nremedies did not apply to the States.\n(d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully\napplicable to the States.\n(1) The Court must decide whether that right is fundamental to the Nation\xe2\x80\x99s scheme of\nordered liberty, or, as the Court has said in a related context, whether it is \xe2\x80\x9cdeeply rooted in this\nNation\xe2\x80\x99s history and tradition,\xe2\x80\x9d. Heller points unmistakably to the answer. Self-defense is a basic\nright, recognized by many legal systems from ancient times to the present, and the Heller Court\nheld that individual self-defense is \xe2\x80\x9cthe central component\xe2\x80\x9d of the Second Amendment right.\nExplaining that \xe2\x80\x9cthe need for defense of self, family, and property is most acute\xe2\x80\x9d in the home, the\n89\n\n\x0cCourt found that this right applies to handguns because they are \xe2\x80\x9cthe most preferred firearm in the\nnation to \xe2\x80\x98keep\xe2\x80\x99 and use for protection of one\xe2\x80\x99s home and family,\xe2\x80\x9d. It thus concluded that citizens\nmust be permitted \xe2\x80\x9cto use [handguns] for the core lawful purpose of self-defense.\xe2\x80\x9d Heller also\nclarifies that this right is \xe2\x80\x9cdeeply rooted in this Nation\xe2\x80\x99s history and traditions,\xe2\x80\x9d Heller explored\nthe right\xe2\x80\x99s origins in English law and noted the esteem with which the right was regarded during\nthe colonial era and at the time of the ratification of the Bill of Rights. This is powerful evidence\nthat the right was regarded as fundamental in the sense relevant here. That understanding persisted\nin the years immediately following the Bill of Rights\xe2\x80\x99 ratification and is confirmed by the state\nconstitutions of that era, which protected the right to keep and bear arms.\n(2) A survey of the contemporaneous history also demonstrates clearly that the Fourteenth\nAmendment\xe2\x80\x99s Framers and ratifiers counted the right to keep and bear arms among those\nfundamental rights necessary to the Nation\xe2\x80\x99s system of ordered liberty.\n(i) By the 1850\xe2\x80\x99s, the fear that the National Government would disarm the universal\nmilitia had largely faded, but the right to keep and bear arms was highly valued for self-defense.\nAbolitionist authors wrote in support of the right, and attempts to disarm \xe2\x80\x9cFree-Soilers\xe2\x80\x9d in \xe2\x80\x9cBloody\nKansas,\xe2\x80\x9d met with outrage that the constitutional right to keep and bear arms had been taken from\nthe people. After the Civil War, the Southern States engaged in systematic efforts to disarm and\ninjure African Americans, see Heller. These injustices prompted the 39th Congress to pass the\nFreedmen\xe2\x80\x99s Bureau Act of 1866, and the Civil Rights Act of 1866 to protect the right to keep and\nbear arms. Congress, however, ultimately deemed these legislative remedies insufficient, and\napproved the Fourteenth Amendment. Today, it is generally accepted that that Amendment was\nunderstood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act.\nIn Congressional debates on the proposed Amendment, its legislative proponents in the 39th\nCongress referred to the right to keep and bear arms as a fundamental right deserving of protection.\nEvidence from the period immediately following the Amendment\xe2\x80\x99s ratification confirms that that\nright was considered fundamental.\n(ii) The right to keep and bear arms must be regarded as a substantive guarantee, not a\nprohibition that could be ignored so long as the States legislated in an evenhanded manner.\n567 F. 3d 856, reversed and remanded.\nAlito, J., announced the judgment of the Court and delivered the opinion of the Court with respect\nto Parts I, II\xe2\x80\x93A, II\xe2\x80\x93B, II\xe2\x80\x93D, III\xe2\x80\x93A, and III\xe2\x80\x93B, in which Roberts, C. J., and Scalia, Kennedy, and\nThomas, JJ., joined, and an opinion with respect to Parts II\xe2\x80\x93C, IV, and V, in which Roberts, C. J.,\nand Scalia and Kennedy, JJ., join. Scalia, J., filed a concurring opinion. Thomas, J., filed an opinion\nconcurring in part and concurring in the judgment. Stevens, J., filed a dissenting opinion. Breyer,\nJ., filed a dissenting opinion, in which Ginsburg and Sotomayor, JJ., joined.\n\nPATRICK KENNEDY v. LOUISIANA\n554 U.S. 407 (2008)\n(Case Syllabus edited by the Author)\n90\n\n\x0cLouisiana charged petitioner with the aggravated rape of his then-8-year-old stepdaughter. He was\nconvicted and sentenced to death under a state statute authorizing capital punishment for the rape\nof a child under 12. The State Supreme Court affirmed, rejecting petitioner\xe2\x80\x99s reliance on Coker v.\nGeorgia, 433 U. S. 584, which barred the use of the death penalty as punishment for the rape of\nan adult woman, but left open the question which, if any, other non-homicide crimes can be\npunished by death consistent with the Eighth Amendment. Reasoning that children are a class in\nneed of special protection, the state court held child rape to be unique in terms of the harm it inflicts\nupon the victim and society and concluded that, short of first-degree murder, there is no crime\nmore deserving of death. The court acknowledged that petitioner would be the first person\nexecuted since the state law was amended to authorize the death penalty for child rape in 1995,\nand that Louisiana is in the minority of jurisdictions authorizing death for that crime. However,\nemphasizing that four more States had capitalized child rape since 1995, and at least eight others\nhad authorized death for other non-homicide crimes, as well as that, under Roper v. Simmons, 543\nU. S. 551, and Atkins v. Virginia, 536 U. S. 304, it is the direction of change rather than the\nnumerical count that is significant, the court held petitioner\xe2\x80\x99s death sentence to be constitutional.\nHeld:\nThe Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child\nwhere the crime did not result, and was not intended to result, in the victim\xe2\x80\x99s death.\nThe Amendment\xe2\x80\x99s Cruel and Unusual Punishment Clause \xe2\x80\x9cdraw[s] its meaning from the evolving\nstandards of decency that mark the progress of a maturing society.\xe2\x80\x9d Trop v. Dulles, 356 U. S. 86.\nThe standard for extreme cruelty \xe2\x80\x9citself remains the same, but its applicability must change as the\nbasic mores of society change.\xe2\x80\x9d Furman v. Georgia, 408 U. S. 238. Under the precept of justice\nthat punishment is to be graduated and proportioned to the crime, informed by evolving standards,\ncapital punishment must \xe2\x80\x9cbe limited to those offenders who commit \xe2\x80\x98a narrow category of the most\nserious crimes\xe2\x80\x99 and whose extreme culpability makes them \xe2\x80\x98the most deserving of execution.\xe2\x80\x99\xe2\x80\x9d\nRoper.\nApplying this principle, the Court held in Roper and Atkins that the execution of juveniles and\nmentally retarded persons violates the Eighth Amendment because the offender has a diminished\npersonal responsibility for the crime. The Court also has found the death penalty disproportionate\nto the crime itself where the crime did not result, or was not intended to result, in the victim\xe2\x80\x99s\ndeath. See, e.g., Coker, supra; Enmund v. Florida, 458 U. S. 782. In making its determination, the\nCourt is guided by \xe2\x80\x9cobjective indicia of society\xe2\x80\x99s standards, as expressed in legislative enactments\nand state practice with respect to executions.\xe2\x80\x9d Roper.\nConsensus is not dispositive, however. Whether the death penalty is disproportionate to the crime\nalso depends on the standards elaborated by controlling precedents and on the Court\xe2\x80\x99s own\nunderstanding and interpretation of the Eighth Amendment\xe2\x80\x99s text, history, meaning, and purpose.\nA review of the authorities informed by contemporary norms, including the history of the death\npenalty for this and other non-homicide crimes, current state statutes and new enactments, and the\nnumber of executions since 1964, demonstrates a national consensus against capital punishment\nfor the crime of child rape.\n91\n\n\x0cThe Court follows the approach of cases in which objective indicia of consensus demonstrated an\nopinion against the death penalty for juveniles, see Roper, supra, mentally retarded offenders, see\nAtkins, supra, and vicarious felony murderers, and see Enmund, supra. Thirty-seven\njurisdictions\xe2\x80\x9436 States plus the Federal Government\xe2\x80\x94currently impose capital punishment, but\nonly six States authorize it for child rape. In 45 jurisdictions, by contrast, petitioner could not be\nexecuted for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and\nthe 42 in Enmund that prohibited the death penalty under the circumstances those cases considered.\nRespondent\xe2\x80\x99s argument that Coker\xe2\x80\x99s general discussion contrasting murder and rape, has been\ninterpreted too expansively, leading some States to conclude that Coker applies to child rape when\nin fact it does not, is unsound. Coker\xe2\x80\x99s holding was narrower than some of its language read in\nisolation indicates. The Coker plurality framed the question as whether, \xe2\x80\x9cwith respect to rape of\nan adult woman,\xe2\x80\x9d the death penalty is disproportionate punishment, and it repeated the phrase\n\xe2\x80\x9cadult woman\xe2\x80\x9d or \xe2\x80\x9cadult female\xe2\x80\x9d eight times in discussing the crime or the victim.\nThe distinction between adult and child rape was not merely rhetorical; it was central to Coker\xe2\x80\x99s\nreasoning, including its analysis of legislative consensus. There is little evidence to support\nrespondent\xe2\x80\x99s contention that state legislatures have understood Coker to state a broad rule that\ncovers minor victims, and state courts have uniformly concluded that Coker did not address that\ncrime. Accordingly, the small number of States that have enacted the death penalty for child rape\nis relevant to determining whether there is a consensus against capital punishment for the rape of\na child.\nA consistent direction of change in support of the death penalty for child rape might counterbalance\nan otherwise weak demonstration of consensus, but no showing of consistent change has been\nmade here. That five States may have had pending legislation authorizing death for child rape is\nnot dispositive because it is not this Court\xe2\x80\x99s practice, nor is it sound, to find contemporary norms\nbased on legislation proposed but not yet enacted. Indeed, since the parties submitted their briefs,\nthe legislation in at least two of the five States has failed.\nThe fact that only six States have made child rape a capital offense is not an indication of a trend\nor change in direction comparable to the one in Roper. The evidence bears a closer resemblance\nto that in Enmund, where the Court found a national consensus against death for vicarious felony\nmurder despite eight jurisdictions having authorized it.\nExecution statistics also confirm that there is a social consensus against the death penalty for child\nrape. Nine States have permitted capital punishment for adult or child rape for some length of time\nbetween the Court\xe2\x80\x99s 1972 Furman decision and today; yet no individual has been executed for the\nrape of an adult or child since 1964, and no execution for any other non-homicide offense has been\nconducted since 1963. Louisiana is the only State since 1964 that has sentenced an individual to\ndeath for child rape, and petitioner and another man so sentenced are the only individuals now on\ndeath row in the United States for non-homicide offenses.\n\n92\n\n\x0cInformed by its own precedents and its understanding of the Constitution and the rights it secures,\nthe Court concludes, in its independent judgment, that the death penalty is not a proportional\npunishment for the crime of child rape.\nThe Court\xe2\x80\x99s own judgment should be brought to bear on the death penalty\xe2\x80\x99s acceptability under\nthe Eighth Amendment. Rape\xe2\x80\x99s permanent and devastating impact on a child suggests moral\ngrounds for questioning a rule barring capital punishment simply because the crime did not result\nin the victim\xe2\x80\x99s death, but it does not follow that death is a proportionate penalty for child rape. The\nconstitutional prohibition against excessive or cruel and unusual punishments mandates that\npunishment \xe2\x80\x9cbe exercised within the limits of civilized standards.\xe2\x80\x9d\nThe Court\xe2\x80\x99s decision is consistent with the justifications offered for the death penalty, retribution,\nand deterrence, see, e.g., Gregg v. Georgia, 428 U. S. 153. Among the factors for determining\nwhether retribution is served, the Court must look to whether the death penalty balances the wrong\nto the victim in non-homicide cases. Roper. It is not at all evident that the child rape victim\xe2\x80\x99s hurt\nis lessened when the law permits the perpetrator\xe2\x80\x99s death, given that capital cases require a longterm commitment by those testifying for the prosecution. Society\xe2\x80\x99s desire to inflict death for child\nrape by enlisting the child victim to assist it over the course of years in asking for capital\npunishment forces a moral choice on the child, who is not of mature age to make that choice. There\nare also relevant systemic concerns in prosecuting child rape, including the documented problem\nof unreliable, induced, and even imagined child testimony, which creates a \xe2\x80\x9cspecial risk of\nwrongful execution\xe2\x80\x9d in some cases. Atkins. As to deterrence, the evidence suggests that the death\npenalty may not result in more effective enforcement, but may add to the risk of non-reporting of\nchild rape out of fear of negative consequences for the perpetrator, especially if he is a family\nmember. And, by in effect making the punishment for child rape and murder equivalent, a State\nmay remove a strong incentive for the rapist not to kill his victim.\nThe concern that the Court\xe2\x80\x99s holding will effectively block further development of a consensus\nfavoring the death penalty for child rape overlooks the principle that the Eighth Amendment is\ndefined by \xe2\x80\x9cthe evolving standards of decency that mark the progress of a maturing society,\xe2\x80\x9d Trop.\nConfirmed by the Court\xe2\x80\x99s repeated, consistent rulings, this principle requires that resort to capital\npunishment be restrained, limited in its instances of application, and reserved for the worst of\ncrimes, those that, in the case of crimes against individuals, take the victim\xe2\x80\x99s life.\n957 So. 2d 757, reversed and remanded.\nKennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer,\nJJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Thomas,\nJJ., joined.\n\nArizona v. Gant\n566 U.S. 332 (2009)\n(Case Syllabus edited by the Author)\n\n93\n\n\x0cRespondent Gant was arrested for driving on a suspended license, handcuffed, and locked in a\npatrol car before officers searched his car and found cocaine in a jacket pocket. The Arizona trial\ncourt denied his motion to suppress the evidence, and he was convicted of drug offenses.\nReversing, the State Supreme Court distinguished New York v. Belton, 453 U. S. 454 which held\nthat police may search the passenger compartment of a vehicle, and any containers therein, as a\ncontemporaneous incident of a recent occupant\xe2\x80\x99s lawful arrest on the ground that it concerned the\nscope of a search incident to arrest, but did not answer the question whether officers may conduct\nsuch a search once the scene has been secured. Because Chimel v. California, 395 U. S. 752,\nrequires that a search incident to arrest be justified by either the interest in officer safety or the\ninterest in preserving evidence and the circumstances of Gant\xe2\x80\x99s arrest implicated neither of those\ninterests, the State Supreme Court found the search unreasonable.\nHeld:\nPolice may search the passenger compartment of a vehicle incident to a recent occupant\xe2\x80\x99s arrest\nonly if it is reasonable to believe that the arrestee might access the vehicle at the time of the search\nor that the vehicle contains evidence of the offense of arrest.\n(a) Warrantless searches \xe2\x80\x9care per se unreasonable,\xe2\x80\x9d \xe2\x80\x9csubject only to a few specifically established\nand well-delineated exceptions.\xe2\x80\x9d Katz v. United States, 389 U. S. 347. The exception for a search\nincident to a lawful arrest applies only to \xe2\x80\x9cthe area from within which [an arrestee] might gain\npossession of a weapon or destructible evidence.\xe2\x80\x9d Chimel, 395 U. S., at 763. This Court applied\nthat exception to the automobile context in Belton, the holding of which rested in large part on the\nassumption that articles inside a vehicle\xe2\x80\x99s passenger compartment are \xe2\x80\x9cgenerally \xe2\x80\xa6 within \xe2\x80\x98the\narea into which an arrestee might reach.\xe2\x80\x99\xe2\x80\x9d 453 U.S., at 460.\n(b) This Court rejects a broad reading of Belton that would permit a vehicle search incident to a\nrecent occupant\xe2\x80\x99s arrest even if there were no possibility the arrestee could gain access to the\nvehicle at the time of the search. The safety and evidentiary justifications underlying Chimel\xe2\x80\x99s\nexception authorize a vehicle search only when there is a reasonable possibility of such access.\nAlthough it does not follow from Chimel, circumstances unique to the automobile context also\njustify a search incident to a lawful arrest when it is \xe2\x80\x9creasonable to believe evidence relevant to\nthe crime of arrest might be found in the vehicle.\xe2\x80\x9d Thornton v. United States, 541 U. S. 615.\nNeither Chimel\xe2\x80\x99s reaching-distance rule nor Thornton\xe2\x80\x99s allowance for evidentiary searches\nauthorized the search in this case. In contrast to Belton, which involved a single officer confronted\nwith four unsecured arrestees, five officers handcuffed and secured Gant and the two other suspects\nin separate patrol cars before the search began. Gant clearly could not have accessed his car at the\ntime of the search. An evidentiary basis for the search was also lacking. Belton and Thornton were\nboth arrested for drug offenses, but Gant was arrested for driving with a suspended license\xe2\x80\x94an\noffense for which police could not reasonably expect to find evidence in Gant\xe2\x80\x99s car. The search in\nthis case was therefore unreasonable.\n(c) This Court is unpersuaded by the State\xe2\x80\x99s argument that its expansive reading of Belton correctly\nbalances law enforcement interests with an arrestee\xe2\x80\x99s limited privacy interest in his vehicle. The\nState seriously undervalues the privacy interests at stake, and it exaggerates both the clarity\nprovided by a broad reading of Belton and its importance to law enforcement interests. A narrow\n94\n\n\x0creading of Belton and Thornton, together with this Court\xe2\x80\x99s other Fourth Amendment decisions,\ne.g., Michigan v. Long, 463 U.S. 103, and United States v. Ross, 456 U.S. 798, permit an officer\nto search a vehicle when safety or evidentiary concerns demand.\n(d) Stare decisis does not require adherence to a broad reading of Belton. The experience of the 28\nyears since Belton has shown that the generalization underpinning the broad reading of that\ndecision is unfounded, and blind adherence to its faulty assumption would authorize myriad\nunconstitutional searches.\n216 Ariz. 1, 162 P. 3d 640, affirmed.\nStevens, J., delivered the opinion of the Court, in which Scalia, Souter, Thomas, and Ginsburg, JJ.,\njoined. Scalia, J., filed a concurring opinion. Breyer, J., filed a dissenting opinion. Alito, J., filed a\ndissenting opinion, in which Roberts, C. J., and Kennedy, J., joined, and in which Breyer, J., joined\nexcept as to Part II\xe2\x80\x93E.\n\nDOES THE NEW YORK CONSTITUTION OFFER MORE RIGHTS THAN THE\nUNITED STATES CONSTITUTION?\nGenerally, the answer is yes. The New York Constitution has been interpreted to grant stronger\nprotections regarding self-incrimination, double jeopardy, due process, religious liberty, freedom\nof speech, freedom of the press, and the rights of immigrants. Below are some of the more specific\nexamples.\n\nJURY TRIALS:\nThe N.Y. Constitution requires twelve jurors for a felony criminal trial.\nThe U.S. Constitution allows for as few as six for felony criminal trials.\nThe N.Y. Constitution requires a unanimous verdict.\nThe U.S. Constitution does not specify, although federal cases require such.\nThe N.Y. Constitution requires the defendant to sign a jury waiver in open court.\nThe U.S. Constitution does not.\nGRAND JURYS:\nThe N.Y. Constitution requires the defendant to sign a grand jury waiver in open court in the\npresence of his/her attorney.\nThe U.S. Constitution does not require the presence of an attorney to waive the grand jury.\nRIGHT TO COUNSEL:\nThe N.Y. Constitution treats the right to an attorney indelible once it attaches. It then cannot be\nwaived without the presence of counsel.\nThe U.S. Constitution allows a defendant who is represented to waive that representation without\ncounsel being present.\n95\n\n\x0cThe N.Y. Constitution asserts the right to counsel upon the commencement of a criminal\nproceeding. In N.Y., commencement starts upon the filing of the felony complaint, regardless if\nthe suspect requests an attorney, and the police cannot question the suspect without the presence\nof an attorney.\nUnder the U.S. Constitution, the commencement does not necessarily occur upon the filing of a\nfelony complaint or the issuance of a warrant.\nThe New York Court of Appeals has interpreted the N.Y. Constitution to extend a suspect\xe2\x80\x99s right\nto counsel well beyond the U.S. Constitution to:\n1. A defendant in custody who is not yet represented by counsel but who has requested\ncounsel. People v. Cunningham, 49 N.Y.2d 203 (1980)\n2. A defendant not in custody and who is questioned about a matter under investigation, where\nofficials know counsel has been retained. People v. Skinner, 52 N.Y.2d 24 (1980)\n3. A defendant whose attorney in other matters appeared at the police station and identified\nhimself, even though he had not been retained by the defendant before his arrival at the\npolice station and took no steps to protect the defendant\xe2\x80\x99s rights upon his arrival. People v.\nArthur, 22 N.Y.2d 325 (1968)\n4. Once a defendant who is in custody is either represented by or requests counsel, custodial\ninterrogation about any subject, whether related or unrelated to the charge upon which\nrepresentation is sought must cease. People v. Rogers, 48 N.Y.2d 167 (1979)\nCOMPETENT COUNSEL\nThe N.Y. Court of Appeals does not require a defendant challenging his conviction on the basis of\nineffective counsel to prove the probability that the outcome would have been different. People v.\nBenevento, 91 N.Y.2d 708 (1998)\nThe U.S. Supreme Court does. Strickland v. Washington, 466 U.S. 668 (1984)\nSEARCH AND SEIZURE:\nThe N.Y. Court of Appeals does not recognize the \xe2\x80\x9cgood faith\xe2\x80\x9d exception to the exclusionary rule.\nPeople v. Bigelow, 66 N.Y.2d 417 (1985), People v. Stith, 69 N.Y.2d 313 (1987)\nThe U.S. Supreme Court does.\nThe N.Y. Court of Appeals does not allow for full searches of a person for a traffic violation arrest.\nPeople v. Adams, 32 N.Y.2d 451 (1973)\nThe U.S. Supreme Court does.\nThe N.Y. Court of Appeals requires a showing of \xe2\x80\x9cexigent circumstances\xe2\x80\x9d for the warrantless\nsearch of a closed container found during the incident to an arrest. People v. Jimenez, 22 N.Y.3d\n717 (2014)\nFederal law allows for such searches.\nThe N.Y. Court of Appeals does not allow for warrantless searches of open fields. People v. Scott,\n79 N.Y.2d 474 (1992)\nThe U.S. Supreme Court does.\n\n96\n\n\x0cThe New York Court of Appeals requires the evaluation of both basis of an informant\xe2\x80\x99s knowledge\nand the reliability or veracity of the informant himself. People v. Johnson, 66 N.Y.2d 398 (1985)\nThe U.S. Supreme Court requires a lower standard of the \xe2\x80\x9ctotality-of-circumstances\xe2\x80\x9d test.\nThe New York Court of Appeals rejects warrantless administrative searches of businesses to\nuncover evidence of criminality. People v. Scott, 79 N.Y.2d 474 (1992)\nThe U.S. Supreme Court does not find such protection in the Fourth Amendment.\nThe New York Court of Appeals rejects the \xe2\x80\x9cplain touch doctrine.\xe2\x80\x9d which allows officers to make\nwarrantless seizures based on recognizing evidence by touch during a pat down.\nThe U.S. Supreme Court does. People v. Diaz, 81 N.Y.2d 106 (1993)\nThe New York Court of Appeals considers canine sniffs as searches. People v. Dunn, 77 N.Y.2d\n19 (1990)\nThe U.S. Supreme Court does not.\nThe New York Court of Appeals requires the police to have probable cause before they can search\na vehicle after a protective frisk. People v. Torres, 74 N.Y.2d 224 (1989)\nThe U.S. Supreme Court does not.\nThe New York Court of Appeals requires the police to have a reason to stop and request identifying\ninformation. The police need suspicion of criminal activity to question a citizen of such. Refusal\nto answer police questions or citizen flight is not enough to trigger search and seizure. People v.\nDe Bour, 40 N.Y.2d 210 (1976) and People v. Howard, 50 N.Y.2d 583 (1980)\nThe U.S. Supreme Court does not.\nThe New York Court of Appeals does not allow statements obtained after a warrantless arrest of a\nsuspect\xe2\x80\x99s home at trial. People v. Harris, 77 N.Y.2d 434 (1991)\nThe U.S. Supreme Court does.\nThe New York Constitution also provides protections that have no United States Constitution\nparallels.\nPUBLIC EDUCATION:\nThe New York Constitution requires free public school education. It also prohibits the use of public\nfunds to support religious school education except for examination, inspection, and transportation.\nSOCIAL WELFARE:\nThe New York Constitution mandates that the state provide aid, care and support for the needy.\nPUBLIC HOUSING:\nThe New York Constitution gives the legislature the authority to provide terms and conditions for\nthe development of low income housing and nursing home accommodations. However, it is not a\nmandate.\nCONSERVATION:\n\n97\n\n\x0cThe New York Constitution \xe2\x80\x9cforever wild\xe2\x80\x9d clause facilitates and protects over three million acres\nof Forest Preserve in both the Catskills and Adirondacks.\n(Source: Protections in the New York State Constitution Beyond the Federal Bill of Rights,\nEdited by Scott N. Fein and Andrew B. Ayers with contributions invited by the Government Law\nCenter at Albany Law School and the Rockefeller Institute of Government, April 18, 2017)\n\n98\n\n\x0cChapter 4, Appendix A: Declaration of Independence\nIN CONGRESS, JULY 4, 1776\nThe unanimous Declaration of the thirteen united States of America\nWhen in the Course of human events it becomes necessary for one people to dissolve the political\nbands which have connected them with another and to assume among the powers of the earth, the\nseparate and equal station to which the Laws of Nature and of Nature\'s God entitle them, a decent\nrespect to the opinions of mankind requires that they should declare the causes which impel them\nto the separation.\nWe hold these truths to be self-evident, that all men are created equal, that they are endowed by\ntheir Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of\nHappiness. \xe2\x80\x94 That to secure these rights, Governments are instituted among Men, deriving their\njust powers from the consent of the governed, \xe2\x80\x94 That whenever any Form of Government\nbecomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to\ninstitute new Government, laying its foundation on such principles and organizing its powers in\nsuch form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed,\nwill dictate that Governments long established should not be changed for light and transient causes;\nand accordingly all experience hath shewn that mankind are more disposed to suffer, while evils\nare sufferable than to right themselves by abolishing the forms to which they are accustomed. But\nwhen a long train of abuses and usurpations, pursuing invariably the same Object evinces a design\nto reduce them under absolute Despotism, it is their right, it is their duty, to throw off such\nGovernment, and to provide new Guards for their future security. \xe2\x80\x94 Such has been the patient\nsufferance of these Colonies; and such is now the necessity which constrains them to alter their\nformer Systems of Government. The history of the present King of Great Britain is a history of\nrepeated injuries and usurpations, all having in direct object the establishment of an absolute\nTyranny over these States. To prove this, let Facts be submitted to a candid world.\nHe has refused his Assent to Laws, the most wholesome and necessary for the public good.\nHe has forbidden his Governors to pass Laws of immediate and pressing importance, unless\nsuspended in their operation till his Assent should be obtained; and when so suspended, he has\nutterly neglected to attend to them.\nHe has refused to pass other Laws for the accommodation of large districts of people, unless those\npeople would relinquish the right of Representation in the Legislature, a right inestimable to them\nand formidable to tyrants only.\nHe has called together legislative bodies at places unusual, uncomfortable, and distant from the\ndepository of their Public Records, for the sole purpose of fatiguing them into compliance with his\nmeasures.\nHe has dissolved Representative Houses repeatedly, for opposing with manly firmness his\ninvasions on the rights of the people.\n\n99\n\n\x0cHe has refused for a long time, after such dissolutions, to cause others to be elected, whereby the\nLegislative Powers, incapable of Annihilation, have returned to the People at large for their\nexercise; the State remaining in the mean time exposed to all the dangers of invasion from without,\nand convulsions within.\nHe has endeavoured to prevent the population of these States; for that purpose obstructing the\nLaws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither,\nand raising the conditions of new Appropriations of Lands.\nHe has obstructed the Administration of Justice by refusing his Assent to Laws for establishing\nJudiciary Powers.\nHe has made Judges dependent on his Will alone for the tenure of their offices, and the amount\nand payment of their salaries.\nHe has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people\nand eat out their substance.\nHe has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.\nHe has affected to render the Military independent of and superior to the Civil Power.\nHe has combined with others to subject us to a jurisdiction foreign to our constitution, and\nunacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:\nFor quartering large bodies of armed troops among us:\nFor protecting them, by a mock Trial from punishment for any Murders which they should commit\non the Inhabitants of these States:\nFor cutting off our Trade with all parts of the world:\nFor imposing Taxes on us without our Consent:\nFor depriving us in many cases, of the benefit of Trial by Jury:\nFor transporting us beyond Seas to be tried for pretended offences:\nFor abolishing the free System of English Laws in a neighbouring Province, establishing therein\nan Arbitrary government, and enlarging its Boundaries so as to render it at once an example and\nfit instrument for introducing the same absolute rule into these Colonies\nFor taking away our Charters, abolishing our most valuable Laws and altering fundamentally the\nForms of our Governments:\n\n100\n\n\x0cFor suspending our own Legislatures, and declaring themselves invested with power to legislate\nfor us in all cases whatsoever.\nHe has abdicated Government here, by declaring us out of his Protection and waging War against\nus.\nHe has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our\npeople.\nHe is at this time transporting large Armies of foreign Mercenaries to compleat the works of death,\ndesolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled\nin the most barbarous ages, and totally unworthy the Head of a civilized nation.\nHe has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their\nCountry, to become the executioners of their friends and Brethren, or to fall themselves by their\nHands.\nHe has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants\nof our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished\ndestruction of all ages, sexes and conditions.\nIn every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our\nrepeated Petitions have been answered only by repeated injury. A Prince, whose character is thus\nmarked by every act which may define a Tyrant, is unfit to be the ruler of a free people.\nNor have We been wanting in attentions to our British brethren. We have warned them from time\nto time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have\nreminded them of the circumstances of our emigration and settlement here. We have appealed to\ntheir native justice and magnanimity, and we have conjured them by the ties of our common\nkindred to disavow these usurpations, which would inevitably interrupt our connections and\ncorrespondence. They too have been deaf to the voice of justice and of consanguinity. We must,\ntherefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold\nthe rest of mankind, Enemies in War, in Peace Friends.\nWe, therefore, the Representatives of the united States of America, in General Congress,\nAssembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in\nthe Name, and by Authority of the good People of these Colonies, solemnly publish and declare,\nThat these united Colonies are, and of Right ought to be Free and Independent States, that they are\nAbsolved from all Allegiance to the British Crown, and that all political connection between them\nand the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent\nStates, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce,\nand to do all other Acts and Things which Independent States may of right do. \xe2\x80\x94 And for the\nsupport of this Declaration, with a firm reliance on the protection of Divine Providence, we\nmutually pledge to each other our Lives, our Fortunes, and our sacred Honor.\n\n101\n\n\x0cNew Hampshire:\nJosiah Bartlett, William Whipple, Matthew Thornton\nMassachusetts:\nJohn Hancock, Samuel Adams, John Adams, Robert Treat Paine, Elbridge Gerry\nRhode Island:\nStephen Hopkins, William Ellery\nConnecticut:\nRoger Sherman, Samuel Huntington, William Williams, Oliver Wolcott\nNew York:\nWilliam Floyd, Philip Livingston, Francis Lewis, Lewis Morris\nNew Jersey:\nRichard Stockton, John Witherspoon, Francis Hopkinson, John Hart, Abraham Clark\nPennsylvania:\nRobert Morris, Benjamin Rush, Benjamin Franklin, John Morton, George Clymer, James Smith,\nGeorge Taylor, James Wilson, George Ross\nDelaware:\nCaesar Rodney, George Read, Thomas McKean\nMaryland:\nSamuel Chase, William Paca, Thomas Stone, Charles Carroll of Carrollton\nVirginia:\nGeorge Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin Harrison, Thomas Nelson, Jr.,\nFrancis Lightfoot Lee, Carter Braxton\nNorth Carolina:\nWilliam Hooper, Joseph Hewes, John Penn\nSouth Carolina:\nEdward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr., Arthur Middleton\nGeorgia:\nButton Gwinnett, Lyman Hall, George Walton\n\n102\n\n\x0cChapter 4, Appendix B: New York State Constitution\xe2\x80\x99s Table of Contents\nand Bill of Rights\n(For complete NYS Constitution use the following link.)\nhttps://www.dos.ny.gov/info/constitution/index.html\nTHE CONSTITUTION\nOF THE\nSTATE OF NEW YORK\nAs Revised, with Amendments adopted by the\nConstitutional Convention of 1938 and Approved\nby Vote of the People on November 8, 1938\nand\nAmendments subsequently adopted by the\nLegislature and Approved by Vote of the People.\nARTICLE I\nBill of Rights\n\xc2\xa71.\n\nRights, privileges and franchise secured; power of legislature to dispense with primary\nelections in certain cases.\n\n2.\n\nTrial by jury; how waived.\n\n3.\n\nFreedom of worship; religious liberty.\n\n4.\n\nHabeas corpus.\n\n5.\n\nBail; fines; punishments; detention of witnesses.\n\n6.\n\nGrand jury; protection of certain enumerated rights; duty of public officers to sign waiver\nof immunity and give testimony; penalty for refusal.\n\n7.\n\nCompensation for taking private property; private roads; drainage of agricultural lands.\n\n8.\n\nFreedom of speech and press; criminal prosecutions for libel.\n\n9.\n\nRight to assemble and petition; divorce; lotteries; pool-selling and gambling; laws to\nprevent; pari-mutuel betting on horse races permitted; games of chance, bingo or lotto\nauthorized under certain restrictions.\n\n10.\n\nRepealed\n103\n\n\x0c11.\n12.\n\nEqual protection of laws; discrimination in civil rights prohibited.\nSecurity against unreasonable searches, seizures and interceptions.\n\n13.\n\nRepealed\n\n14.\n\nCommon law and acts of the colonial and state legislatures.\n\n15.\n\nRepealed\n\n16.\n\nDamages for injuries causing death.\n\n17.\n\nLabor not a commodity; hours and wages in public work; right to organize and bargain\ncollectively.\n\n18.\n\nWorkers\' compensation.\nARTICLE II\nSuffrage\n\n\xc2\xa71.\n\nQualifications of voters.\n\n2.\n\nAbsentee voting.\n\n3.\n\nPersons excluded from the right of suffrage.\n\n4.\n\nCertain occupations and conditions not to affect residence.\n\n5.\n\nRegistration and election laws to be passed.\n\n6.\n\nPermanent registration.\n\n7.\n\nManner of voting; identification of voters.\n\n8.\n\nBi-partisan registration and election board.\n\n9.\n\nPresidential elections; special voting procedures authorized.\nARTICLE III\nLegislature\n\n\xc2\xa71.\n\nLegislative power.\n\n2.\n\nNumber and terms of senators and assemblymen.\n\n3.\n\nSenate districts.\n\n104\n\n\x0c4.\n5.\n\nReadjustments and reapportionments; when federal census to control.\nApportionment of assemblymen; creation of assembly districts.\n\n5-a.\n\nDefinition of inhabitants.\n\n6.\n\nCompensation, allowances and traveling expenses of members.\n\n7.\n\nQualifications of members; prohibitions on certain civil appointments; acceptance to\nvacate seat.\n\n8.\n\nTime of elections of members.\n\n9.\n\nPowers of each house.\n\n10.\n\nJournals; open sessions; adjournments.\n\n11.\n\nMembers not to be questioned for speeches.\n\n12.\n\nBills may originate in either house; may be amended by the other.\n\n13.\n\nEnacting clause of bills; no law to be enacted except by bill.\n\n14.\n\nManner of passing bills; message of necessity for immediate vote.\n\n15.\n\nPrivate or local bills to embrace only one subject, expressed in title.\n\n16.\n\nExisting law not to be made applicable by reference.\n\n17.\n\nCases in which private or local bills shall not be passed.\n\n18.\n\nExtraordinary sessions of the legislature; power to convene on legislative initiative.\n\n19.\n\nPrivate claims not to be audited by legislature; claims barred by lapse of time.\n\n20.\n\nTwo-thirds bills.\n\n21.\n\nCertain sections not to apply to bills recommended by certain commissioners or public\nagencies.\n\n22.\n\nTax laws to state tax and object distinctly; definition of income for income tax purposes by\nreference to federal laws authorized.\n\n23.\n\nWhen yeas and nays necessary; three-fifths to constitute quorum.\n\n24.\n\nPrison labor; contract system abolished.\n\n105\n\n\x0c25.\n\nEmergency governmental operations; legislature to provide for.\nARTICLE IV\nExecutive\n\n\xc2\xa71.\n\nExecutive power; election and terms of governor and lieutenant-governor.\n\n2.\n\nQualifications of governor and lieutenant-governor.\n\n3.\n\nPowers and duties of governor; compensation.\n\n4.\n\nReprieves, commutations and pardons; powers and duties of governor relating to grants of.\n\n5.\n\nWhen lieutenant-governor to act as governor.\n\n6.\n\nDuties and compensation of lieutenant-governor; succession to the governorship.\n\n7.\n\nAction by governor on legislative bills; reconsideration after veto.\n\n8.\n\nDepartmental rules and regulations; filing; publication.\nARTICLE V\nOfficers And Civil Departments\n\n\xc2\xa71.\n\nComptroller and attorney-general; payment of state moneys without audit void.\n\n2.\n\nCivil departments in the state government.\n\n3.\n\nAssignment of functions.\n\n4.\n\nDepartment heads.\n\n5.\n\nRepealed\n\n6.\n\nCivil service appointments and promotions; veterans\' credits.\n\n7.\n\nMembership in retirement systems; benefits not to be diminished nor impaired.\nARTICLE VI\nJudiciary\n\n\xc2\xa71.\n\nUnified court system; organization; process.\n\n2.\n\nCourt of appeals; organization; designations; vacancies, how filled; commission on judicial\nnomination.\nCourt of appeals; jurisdiction.\n\n3.\n\n106\n\n\x0c4.\n\nJudicial departments; appellate divisions, how constituted; governor to designate justices;\ntemporary assignments; jurisdiction.\n\n5.\n\nAppeals from judgment or order; new trial.\n\n6.\n\nJudicial districts; how constituted; supreme court.\n\n7.\n\nSupreme court; jurisdiction.\n\n8.\n\nAppellate terms; composition; jurisdiction.\n\n9.\n\nCourt of claims; jurisdiction.\n\n10.\n\nCounty courts; judges.\n\n11.\n\nCounty court; jurisdiction.\n\n12.\n\nSurrogate\'s courts; judges; jurisdiction.\n\n13.\n\nFamily court; organization; jurisdiction.\n\n14.\n\nDischarge of duties of more than one judicial office by same judicial officer.\n\n15.\n\nNew York city; city-wide courts; jurisdiction.\n\n16.\n\nDistrict courts; jurisdiction; judges.\n\n17.\n\nTown, village and city courts; jurisdiction; judges.\n\n18.\n\nTrial by jury; trial without jury; claims against state.\n\n19.\n\nTransfer of actions and proceedings.\n\n20.\n\nJudges and justices; qualifications; eligibility for other office or service; restrictions.\n\n21.\n\nVacancies; how filled.\n\n22.\n\nCommission on judicial conduct; composition; organization and procedure; review by\ncourt of appeals; discipline of judges or justices.\n\n23.\n\nRemoval of judges.\n\n24.\n\nCourt for trial of impeachments; judgment.\n\n25.\n\nJudges and justices; compensation; retirement.\n\n107\n\n\x0c26.\n\nTemporary assignments of judges and justices.\n\n27.\n\nSupreme court; extraordinary terms.\n\n28.\n\nAdministrative supervision of court system.\n\n29.\n\nExpenses of courts.\n\n30.\n\nLegislative power over jurisdiction and proceedings; delegation of power to regulate\npractice and procedure.\n\n31.\n\nInapplicability of article to certain courts.\n\n32.\n\nCustodians of children to be of same religious persuasion.\n\n33.\n\nExisting laws; duty of legislature to implement article.\n\n34.\n\nPending appeals, actions and proceedings; preservation of existing terms of office of judges\nand justices.\n\n35.\n\nCertain courts abolished; transfer of judges, court personnel, and actions and proceedings\nto other courts.\n\n36.\n\nPending civil and criminal cases.\n\n36-a. Effective date of certain amendments to articles VI and VII.\n36-b. No section\n36-c. Effective date of certain amendments to article VI, section 22.\n37.\n\nEffective date of article.\nARTICLE VII\nState Finances\n\n\xc2\xa71.\n\nEstimates by departments, the legislature and the judiciary of needed appropriations;\nhearings.\n\n2.\n\nExecutive budget.\n\n3.\n\nBudget bills; appearances before legislature.\n\n4.\n5.\n\nAction on budget bills by legislature; effect thereof.\nRestrictions on consideration of other appropriations.\n\n108\n\n\x0c6.\n\nRestrictions on content of appropriation bills.\n\n7.\n\nAppropriation bills.\n\n8.\n\nGift or loan of state credit or money prohibited; exceptions for enumerated purposes.\n\n9.\n\nShort term state debts in anticipation of taxes, revenues and proceeds of sale of authorized\nbonds.\n\n10.\n\nState debts on account of invasion, insurrection, war and forest fires.\n\n11.\n\nState debts generally; manner of contracting; referendum.\n\n12.\n\nState debts generally; how paid; contribution to sinking funds; restrictions on use of bond\nproceeds.\n\n13.\n\nRefund of state debts.\n\n14.\n\nState debt for elimination of railroad crossings at grade; expenses; how borne; construction\nand reconstruction of state highways and parkways.\n\n15.\n\nSinking funds; how kept and invested; income therefrom and application thereof.\n\n16.\n\nPayment of state debts; when comptroller to pay without appropriation.\n\n17.\n\nAuthorizing the legislature to establish a fund or funds for tax revenue stabilization\nreserves; regulating payments thereto and withdrawals therefrom.\n\n18.\n\nBonus on account of service of certain veterans in World War II.\n\n19.\n\nState debt for expansion of state university.\nARTICLE VIII\nLocal Finances\n\n\xc2\xa71.\n\nGift or loan of property or credit of local subdivisions prohibited; exceptions for\nenumerated purposes.\n\n2.\n\nRestrictions on indebtedness of local subdivisions; contracting and payment of local\nindebtedness; exceptions.\n\n2-a.\n\nLocal indebtedness for water supply, sewage and drainage facilities and purposes;\nallocations and exclusions of indebtedness.\n\n3.\n\nRestrictions on creation and indebtedness of certain corporations.\n\n109\n\n\x0c4.\n\nLimitations on local indebtedness.\n\n5.\n\nAscertainment of debt-incurring power of counties, cities, towns and villages; certain\nindebtedness to be excluded.\n\n6.\n\nDebt-incurring power of Buffalo, Rochester, and Syracuse; certain additional indebtedness\nto be excluded.\n\n7.\n\nDebt-incurring power of New York city; certain additional indebtedness to be excluded.\n\n7-a.\n\nDebt-incurring power of New York city; certain indebtedness for railroads and transit\npurposes to be excluded.\n\n8.\n\nIndebtedness not to be invalidated by operation of this article.\n\n9.\n\nWhen debt-incurring power of certain counties shall cease.\n\n10.\n\nLimitations on amount to be raised by real estate taxes for local purposes; exceptions.\n\n10-a. Application and use of revenues: certain public improvements.\n11.\n\nTaxes for certain capital expenditures to be excluded from tax limitation.\n\n12.\n\nPowers of local governments to be restricted; further limitations on contracting local\nindebtedness authorized.\nARTICLE IX\nLocal Governments\n\n\xc2\xa71.\n\nBill of rights for local governments.\n\n2.\n\nPowers and duties of legislature; home rule powers of local governments; statute of local\ngovernments.\n\n3.\n\nExisting laws to remain applicable; construction; definitions.\nARTICLE X\nCorporations\n\n\xc2\xa71.\n\nCorporations; formation of.\n\n2.\n\nDues of corporations.\n\n3.\n\nSavings bank charters; savings and loan association charters; special charters not to be\ngranted.\n\n110\n\n\x0c4.\n\nCorporations; definition; right to sue and be sued.\n\n5.\n\nPublic corporations; restrictions on creation and powers; accounts; obligations of.\n\n6.\n\nLiability of state for payment of bonds of public corporation to construct state thruways;\nuse of state canal lands and properties.\n\n7.\n\nLiability of state for obligations of the port of New York authority for railroad commuter\ncars; limitations.\n\n8.\n\nLiability of state on bonds of a public corporation to finance new industrial or\nmanufacturing plants in depressed areas.\nARTICLE XI\nEducation\n\n\xc2\xa71.\n\nCommon schools.\n\n2.\n\nRegents of the University.\n\n3.\n\nUse of public property or money in aid of denominational schools prohibited;\ntransportation of children authorized.\nARTICLE XII\nDefense\n\n\xc2\xa71.\n\nDefense; militia.\nARTICLE XIII\nPublic Officers\n\n\xc2\xa71.\n\nOath of office; no other test for public office.\n\n2.\n\nDuration of term of office.\n\n3.\n\nVacancies in office; how filled; boards of education.\n\n4.\n\nPolitical year and legislative term.\n\n5.\n\nRemoval from office for misconduct.\n\n6.\n\nWhen office to be deemed vacant; legislature may declare.\n\n7.\n\nCompensation of officers.\n\n8.\n\nElection and term of city and certain county officers.\n111\n\n\x0c9-12. No sections 9-12\n13.\n\nLaw enforcement and other officers.\n\n14.\n\nEmployees of, and contractors for, the state and local governments; wages, hours and other\nprovisions to be regulated by legislature.\nARTICLE XIV\nConservation\n\n\xc2\xa71.\n\nForest preserve to be forever kept wild; authorized uses and exceptions.\n\n2.\n\nReservoirs.\n\n3.\n\nForest and wild life conservation; use or disposition of certain lands authorized.\n\n4.\n\nProtection of natural resources; development of agricultural lands.\n\n5.\n\nViolations of article; how restrained.\nARTICLE XV\nCanals\n\n\xc2\xa71.\n\nDisposition of canals and canal properties prohibited.\n\n2.\n\nProhibition inapplicable to lands and properties no longer useful; disposition authorized.\n\n3.\n\nContracts for work and materials; special revenue fund.\n\n4.\n\nLease or transfer to federal government of barge canal system authorized.\nARTICLE XVI\nTaxation\n\n\xc2\xa71.\n\nPower of taxation; exemptions from taxation.\n\n2.\n\nAssessments for taxation purposes.\n\n3.\n\nSitus of intangible personal property; taxation of.\n\n4.\n\nCertain corporations not to be discriminated against.\n\n5.\n\nCompensation of public officers and employees subject to taxation.\n\n6.\n\nPublic improvements or services; contract of indebtedness; creation of public corporations.\nARTICLE XVII\n112\n\n\x0cSocial Welfare\n\xc2\xa71.\n\nPublic relief and care.\n\n2.\n\nState board of social welfare; powers and duties.\n\n3.\n\nPublic health.\n\n4.\n\nCare and treatment of persons suffering from mental disorder or defect; visitation of\ninstitutions for.\n\n5.\n\nInstitutions for detention of criminals; probation; parole; state commission of correction.\n\n6.\n\nVisitation and inspection.\n\n7.\n\nLoans for hospital construction.\nARTICLE XVIII\nHousing\n\n\xc2\xa71.\n\nHousing and nursing home accommodations for persons of low income; slum clearance.\n\n2.\n\nIdem; powers of legislature in aid of.\n\n3.\n\nArticle VII to apply to state debts under this article, with certain exceptions; amortization\nof state debts; capital and periodic subsidies.\n\n4.\n\nPowers of cities, towns and villages to contract indebtedness in aid of low rent housing and\nslum clearance projects; restrictions thereon.\n\n5.\n\nLiability for certain loans made by the state to certain public corporations.\n\n6.\n\nLoans and subsidies; restrictions on and preference in occupancy of projects.\n\n7.\n\nLiability arising from guarantees to be deemed indebtedness; method of computing.\n\n8.\n\nExcess condemnation.\n\n9.\n\nAcquisition of property for purposes of article.\n\n10.\n\nPower of legislature; construction of article.\n\nARTICLE XIX\n113\n\n\x0cAmendments To Constitution\n\xc2\xa71.\n\nAmendments to constitution; how proposed, voted upon and ratified; failure of attorneygeneral to render opinion not to affect validity.\n\n2.\n\nFuture constitutional conventions; how called; election of delegates; compensation;\nquorum; submission of amendments; officers; employees; rules; vacancies.\n\n3.\n\nAmendments simultaneously submitted by convention and legislature.\nARTICLE XX\nWhen To Take Effect\n\n\xc2\xa71.\n\nTime of taking effect.\nTHE CONSTITUTION\n\n(1)[Preamble] We The People of the State of New York, grateful to Almighty God for our\nFreedom, in order to secure its blessings, DO ESTABLISH THIS CONSTITUTION.\nARTICLE I\nBill Of Rights\n[Rights, privileges and franchise secured; power of legislature to dispense with primary elections\nin certain cases]\nSection 1. No member of this state shall be disfranchised, or deprived of any of the rights or\nprivileges secured to any citizen thereof, unless by the law of the land, or the judgment of his or\nher peers, except that the legislature may provide that there shall be no primary election held to\nnominate candidates for public office or to elect persons to party positions for any political party\nor parties in any unit of representation of the state from which such candidates or persons are\nnominated or elected whenever there is no contest or contests for such nominations or election as\nmay be prescribed by general law. (Amended by vote of the people November 3, 1959; November\n6, 2001.) (2)\n[Trial by jury; how waived]\nSection 2. Trial by jury in all cases in which it has heretofore been guaranteed by constitutional\nprovision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil\ncases in the manner to be prescribed by law. The legislature may provide, however, by law, that a\nverdict may be rendered by not less than five-sixths of the jury in any civil case. A jury trial may\nbe waived by the defendant in all criminal cases, except those in which the crime charged may be\npunishable by death, by a written instrument signed by the defendant in person in open court before\nand with the approval of a judge or justice of a court having jurisdiction to try the offense. The\nlegislature may enact laws, not inconsistent herewith, governing the form, content, manner and\n114\n\n\x0ctime of presentation of the instrument effectuating such waiver. (Amended by Constitutional\nConvention of 1938 and approved by vote of the people November 8, 1938.)\n[Freedom of worship; religious liberty]\nSection 3. The free exercise and enjoyment of religious profession and worship, without\ndiscrimination or preference, shall forever be allowed in this state to all humankind; and no person\nshall be rendered incompetent to be a witness on account of his or her opinions on matters of\nreligious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse\nacts of licentiousness, or justify practices inconsistent with the peace or safety of this state.\n(Amended by vote of the people November 6, 2001.)\n[Habeas corpus]\nSection 4. The privilege of a writ or order of habeas corpus shall not be suspended, unless, in case\nof rebellion or invasion, the public safety requires it. (Amended by Constitutional Convention of\n1938 and approved by vote of the people November 8, 1938.)\n[Bail; fines; punishments; detention of witnesses]\nSection 5. Excessive bail shall not be required nor excessive fines imposed, nor shall cruel and\nunusual punishments be inflicted, nor shall witnesses be unreasonably detained.\n[Grand jury; protection of certain enumerated rights; duty of public officers to sign waiver of\nimmunity and give testimony; penalty for refusal]\nSection 6. No person shall be held to answer for a capital or otherwise infamous crime (except in\ncases of impeachment, and in cases of militia when in actual service, and the land, air and naval\nforces in time of war, or which this state may keep with the consent of congress in time of peace,\nand in cases of petit larceny under the regulation of the legislature), unless on indictment of a grand\njury, except that a person held for the action of a grand jury upon a charge for such an offense,\nother than one punishable by death or life imprisonment, with the consent of the district attorney,\nmay waive indictment by a grand jury and consent to be prosecuted on an information filed by the\ndistrict attorney; such waiver shall be evidenced by written instrument signed by the defendant in\nopen court in the presence of his or her counsel. In any trial in any court whatever the party accused\nshall be allowed to appear and defend in person and with counsel as in civil actions and shall be\ninformed of the nature and cause of the accusation and be confronted with the witnesses against\nhim or her. No person shall be subject to be twice put in jeopardy for the same offense; nor shall\nhe or she be compelled in any criminal case to be a witness against himself or herself, providing,\nthat any public officer who, upon being called before a grand jury to testify concerning the conduct\nof his or her present office or of any public office held by him or her within five years prior to such\ngrand jury call to testify, or the performance of his or her official duties in any such present or\nprior offices, refuses to sign a waiver of immunity against subsequent criminal prosecution, or to\nanswer any relevant question concerning such matters before such grand jury, shall by virtue of\nsuch refusal, be disqualified from holding any other public office or public employment for a\nperiod of five years from the date of such refusal to sign a waiver of immunity against subsequent\n115\n\n\x0cprosecution, or to answer any relevant question concerning such matters before such grand jury,\nand shall be removed from his or her present office by the appropriate authority or shall forfeit his\nor her present office at the suit of the attorney-general.\nThe power of grand juries to inquire into the wilful misconduct in office of public officers, and to\nfind indictments or to direct the filing of informations in connection with such inquiries, shall\nnever be suspended or impaired by law. No person shall be deprived of life, liberty or property\nwithout due process of law. (Amended by Constitutional Convention of 1938 and approved by\nvote of the people November 8, 1938; further amended by vote of the people November 8, 1949;\nNovember 3, 1959; November 6, 1973; November 6, 2001.)\n[Compensation for taking private property; private roads; drainage of agricultural lands]\nSection 7 (a) Private property shall not be taken for public use without just compensation.\n(b) Private roads may be opened in the manner to be prescribed by law; but in every case the\nnecessity of the road and the amount of all damage to be sustained by the opening thereof shall be\nfirst determined by a jury of freeholders, and such amount, together with the expenses of the\nproceedings, shall be paid by the person to be benefitted.\n(c)The use of property for the drainage of swamp or agricultural lands is declared to be a public\nuse, and general laws may be passed permitting the owners or occupants of swamp or agricultural\nlands to construct and maintain for the drainage thereof, necessary drains, ditches and dykes upon\nthe lands of others, under proper restrictions, on making just compensation, and such compensation\ntogether with the cost of such drainage may be assessed, wholly or partly, against any property\nbenefitted thereby; but no special laws shall be enacted for such purposes. (Amended by\nConstitutional Convention of 1938 and approved by vote of the people November 8, 1938.\nSubdivision (e) repealed by vote of the people November 5, 1963. Subdivision (b) repealed by\nvote of the people November 3, 1964.)\n[Freedom of speech and press; criminal prosecutions for libel]\nSection 8. Every citizen may freely speak, write and publish his or her sentiments on all subjects,\nbeing responsible for the abuse of that right; and no law shall be passed to restrain or abridge the\nliberty of speech or of the press. In all criminal prosecutions or indictments for libels, the truth\nmay be given in evidence to the jury; and if it shall appear to the jury that the matter charged as\nlibelous is true, and was published with good motives and for justifiable ends, the party shall be\nacquitted; and the jury shall have the right to determine the law and the fact. (Amended by vote of\nthe people November 6, 2001.)\n[Right to assemble and petition; divorce; lotteries; pool-selling and gambling; laws to prevent;\npari-mutual betting on horse races permitted; games of chance, bingo or lotto authorized under\ncertain restrictions]\n\xc2\xa79.\n1. No law shall be passed abridging the rights of the people peaceably to assemble and to\npetition the government, or any department thereof; nor shall any divorce be granted otherwise\n116\n\n\x0cthan by due judicial proceedings; except as hereinafter provided, no lottery or the sale of lottery\ntickets, pool-selling, book-making, or any other kind of gambling, except lotteries operated by the\nstate and the sale of lottery tickets in connection therewith as may be authorized and prescribed by\nthe legislature, the net proceeds of which shall be applied exclusively to or in aid or support of\neducation in this state as the legislature may prescribe, and except pari-mutual betting on horse\nraces as may be prescribed by the legislature and from which the state shall derive a reasonable\nrevenue for the support of government, shall hereafter be authorized or allowed within this state;\nand the legislature shall pass appropriate laws to prevent offenses against any of the provisions of\nthis section.\n2. Notwithstanding the foregoing provisions of this section, any city, town or village within the\nstate may by an approving vote of the majority of the qualified electors in such municipality voting\non a proposition therefor submitted at a general or special election authorize, subject to state\nlegislative supervision and control, the conduct of one or both of the following categories of games\nof chance commonly known as: (a) bingo or lotto, in which prizes are awarded on the basis of\ndesignated numbers or symbols on a card conforming to numbers or symbols selected at random;\n(b) games in which prizes are awarded on the basis of a winning number or numbers, color or\ncolors, or symbol or symbols determined by chance from among those previously selected or\nplayed, whether determined as the result of the spinning of a wheel, a drawing or otherwise by\nchance. If authorized, such games shall be subject to the following restrictions, among others\nwhich may be prescribed by the legislature: (1) only bona fide religious, charitable or non-profit\norganizations of veterans, volunteer firefighter and similar non-profit organizations shall be\npermitted to conduct such games; (2) the entire net proceeds of any game shall be exclusively\ndevoted to the lawful purposes of such organizations; (3) no person except a bona fide member of\nany such organization shall participate in the management or operation of such game; and (4) no\nperson shall receive any remuneration for participating in the management or operation of any\nsuch game. Unless otherwise provided by law, no single prize shall exceed two hundred fifty\ndollars, nor shall any series of prizes on one occasion aggregate more than one thousand dollars.\nThe legislature shall pass appropriate laws to effectuate the purposes of this subdivision, ensure\nthat such games are rigidly regulated to prevent commercialized gambling, prevent participation\nby criminal and other undesirable elements and the diversion of funds from the purposes\nauthorized hereunder and establish a method by which a municipality which has authorized such\ngames may rescind or revoke such authorization. Unless permitted by the legislature, no\nmunicipality shall have the power to pass local laws or ordinances relating to such games. Nothing\nin this section shall prevent the legislature from passing laws more restrictive than any of the\nprovisions of this section. (Amendment approved by vote of the people November 7, 1939; further\namended by vote of the people November 5, 1957; November 8, 1966; November 4, 1975;\nNovember 6, 1984; November 6, 2001.)\n[Section 10 which dealt with ownership of lands, yellowtail tenures and escheat was repealed by\namendment approved by vote of the people November 6, 1962]\n[Equal protection of laws; discrimination in civil rights prohibited]\nSection 11. No person shall be denied the equal protection of the laws of this state or any\nsubdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any\n117\n\n\x0cdiscrimination in his or her civil rights by any other person or by any firm, corporation, or\ninstitution, or by the state or any agency or subdivision of the state. (New. Adopted by\nConstitutional Convention of 1938 and approved by vote of the people November 8, 1938;\namended by vote of the people November 6, 2001.)\n[Security against unreasonable searches, seizures and interceptions]\nSection 12. The right of the people to be secure in their persons, houses, papers and effects, against\nunreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon\nprobable cause, supported by oath or affirmation, and particularly describing the place to be\nsearched, and the persons or things to be seized.\nThe right of the people to be secure against unreasonable interception of telephone and telegraph\ncommunications shall not be violated, and ex parte orders or warrants shall issue only upon oath\nor affirmation that there is reasonable ground to believe that evidence of crime may be thus\nobtained, and identifying the particular means of communication, and particularly describing the\nperson or persons whose communications are to be intercepted and the purpose thereof. (New.\nAdopted by Constitutional Convention of 1938 and approved by vote of the people November 8,\n1938.)\n[Section 13 which dealt with purchase of lands of Indians was repealed by amendment approved\nby vote of the people November 6, 1962]\n[Common law and acts of the colonial and state legislatures]\nSection 14. Such parts of the common law, and of the acts of the legislature of the colony of New\nYork, as together did form the law of the said colony, on the nineteenth day of April, one thousand\nseven hundred seventy-five, and the resolutions of the congress of the said colony, and of the\nconvention of the State of New York, in force on the twentieth day of April, one thousand seven\nhundred seventy-seven, which have not since expired, or been repealed or altered; and such acts\nof the legislature of this state as are now in force, shall be and continue the law of this state, subject\nto such alterations as the legislature shall make concerning the same. But all such parts of the\ncommon law, and such of the said acts, or parts thereof, as are repugnant to this constitution, are\nhereby abrogated. (Formerly \xc2\xa716. Renumbered and amended by Constitutional Convention of\n1938 and approved by vote of the people November 8, 1938.)\n[Section 15 which dealt with certain grants of lands and of charters made by the king of Great\nBritain and the state and obligations and contracts not to be impaired was repealed by amendment\napproved by vote of the people November 6, 1962]\n[Damages for injuries causing death]\nSection 16. The right of action now existing to recover damages for injuries resulting in death,\nshall never be abrogated; and the amount recoverable shall not be subject to any statutory\nlimitation. (Formerly \xc2\xa718. Renumbered by Constitutional Convention of 1938 and approved by\nvote of the people November 8, 1938.)\n118\n\n\x0c[Labor not a commodity; hours and wages in public work; right to organize and bargain\ncollectively]\nSection 17. Labor of human beings is not a commodity nor an article of commerce and shall never\nbe so considered or construed.\nNo laborer, worker or mechanic, in the employ of a contractor or sub-contractor engaged in the\nperformance of any public work, shall be permitted to work more than eight hours in any day or\nmore than five days in any week, except in cases of extraordinary emergency; nor shall he or she\nbe paid less than the rate of wages prevailing in the same trade or occupation in the locality within\nthe state where such public work is to be situated, erected or used.\nEmployees shall have the right to organize and to bargain collectively through representatives of\ntheir own choosing. (New. Adopted by Constitutional Convention of 1938 and approved by vote\nof the people November 8, 1938; amended by vote of the people November 6, 2001.)\n[Workers\' compensation]\nSection 18. Nothing contained in this constitution shall be construed to limit the power of the\nlegislature to enact laws for the protection of the lives, health, or safety of employees; or for the\npayment, either by employers, or by employers and employees or otherwise, either directly or\nthrough a state or other system of insurance or otherwise, of compensation for injuries to\nemployees or for death of employees resulting from such injuries without regard to fault as a cause\nthereof, except where the injury is occasioned by the wilful intention of the injured employee to\nbring about the injury or death of himself or herself or of another, or where the injury results solely\nfrom the intoxication of the injured employee while on duty; or for the adjustment, determination\nand settlement, with or without trial by jury, of issues which may arise under such legislation; or\nto provide that the right of such compensation, and the remedy therefor shall be exclusive of all\nother rights and remedies for injuries to employees or for death resulting from such injuries; or to\nprovide that the amount of such compensation for death shall not exceed a fixed or determinable\nsum; provided that all moneys paid by an employer to his or her employees or their legal\nrepresentatives, by reason of the enactment of any of the laws herein authorized, shall be held to\nbe a proper charge in the cost of operating the business of the employer. (Formerly \xc2\xa719.\nRenumbered by Constitutional Convention of 1938 and approved by vote of the people November\n8, 1938; amended by vote of the people November 6, 2001.)\n\n119\n\n\x0cChapter 4, Appendix C: The United States Constitution\n(Spelling is from the original document.)\nWe the People of the United States, in Order to form a more perfect Union, establish Justice, insure\ndomestic Tranquility, provide for the common defence, promote the general Welfare, and secure\nthe Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution\nfor the United States of America.\nArticle. I.\nSection. 1.\nAll legislative Powers herein granted shall be vested in a Congress of the United States, which\nshall consist of a Senate and House of Representatives.\nSection. 2.\nThe House of Representatives shall be composed of Members chosen every second Year by the\nPeople of the several States, and the Electors in each State shall have the Qualifications requisite\nfor Electors of the most numerous Branch of the State Legislature.\nNo Person shall be a Representative who shall not have attained to the Age of twenty five Years,\nand been seven Years a Citizen of the United States, and who shall not, when elected, be an\nInhabitant of that State in which he shall be chosen.\nRepresentatives and direct Taxes shall be apportioned among the several States which may be\nincluded within this Union, according to their respective Numbers, which shall be determined by\nadding to the whole Number of free Persons, including those bound to Service for a Term of Years,\nand excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be\nmade within three Years after the first Meeting of the Congress of the United States, and within\nevery subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of\nRepresentatives shall not exceed one for every thirty Thousand, but each State shall have at Least\none Representative; and until such enumeration shall be made, the State of New Hampshire shall\nbe entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one,\nConnecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland\nsix, Virginia ten, North Carolina five, South Carolina five, and Georgia three.\nWhen vacancies happen in the Representation from any State, the Executive Authority thereof\nshall issue Writs of Election to fill such Vacancies.\nThe House of Representatives shall chuse their Speaker and other Officers; and shall have the sole\nPower of Impeachment.\nSection. 3.\nThe Senate of the United States shall be composed of two Senators from each State, chosen by the\nLegislature thereof, for six Years; and each Senator shall have one Vote.\nImmediately after they shall be assembled in Consequence of the first Election, they shall be\ndivided as equally as may be into three Classes. The Seats of the Senators of the first Class shall\n120\n\n\x0cbe vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth\nYear, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen\nevery second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of\nthe Legislature of any State, the Executive thereof may make temporary Appointments until the\nnext Meeting of the Legislature, which shall then fill such Vacancies.\nNo Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine\nYears a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State\nfor which he shall be chosen.\nThe Vice President of the United States shall be President of the Senate, but shall have no Vote,\nunless they be equally divided.\nThe Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of\nthe Vice President, or when he shall exercise the Office of President of the United States.\nThe Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they\nshall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice\nshall preside: And no Person shall be convicted without the Concurrence of two thirds of the\nMembers present.\nJudgment in Cases of Impeachment shall not extend further than to removal from Office, and\ndisqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but\nthe Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and\nPunishment, according to Law.\nSection. 4.\nThe Times, Places and Manner of holding Elections for Senators and Representatives, shall be\nprescribed in each State by the Legislature thereof; but the Congress may at any time by Law make\nor alter such Regulations, except as to the Places of chusing Senators.\nThe Congress shall assemble at least once in every Year, and such Meeting shall be on the first\nMonday in December, unless they shall by Law appoint a different Day.\nSection. 5.\nEach House shall be the Judge of the Elections, Returns and Qualifications of its own Members,\nand a Majority of each shall constitute a Quorum to do Business; but a smaller Number may\nadjourn from day to day, and may be authorized to compel the Attendance of absent Members, in\nsuch Manner, and under such Penalties as each House may provide.\nEach House may determine the Rules of its Proceedings, punish its Members for disorderly\nBehaviour, and, with the Concurrence of two thirds, expel a Member.\nEach House shall keep a Journal of its Proceedings, and from time to time publish the same,\nexcepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the\n\n121\n\n\x0cMembers of either House on any question shall, at the Desire of one fifth of those Present, be\nentered on the Journal.\nNeither House, during the Session of Congress, shall, without the Consent of the other, adjourn\nfor more than three days, nor to any other Place than that in which the two Houses shall be sitting.\nSection. 6.\nThe Senators and Representatives shall receive a Compensation for their Services, to be\nascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases,\nexcept Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance\nat the Session of their respective Houses, and in going to and returning from the same; and for any\nSpeech or Debate in either House, they shall not be questioned in any other Place.\nNo Senator or Representative shall, during the Time for which he was elected, be appointed to any\ncivil Office under the Authority of the United States, which shall have been created, or the\nEmoluments whereof shall have been encreased during such time; and no Person holding any\nOffice under the United States, shall be a Member of either House during his Continuance in\nOffice.\nSection. 7.\nAll Bills for raising Revenue shall originate in the House of Representatives; but the Senate may\npropose or concur with Amendments as on other Bills.\nEvery Bill which shall have passed the House of Representatives and the Senate, shall, before it\nbecome a Law, be presented to the President of the United States; If he approve he shall sign it,\nbut if not he shall return it, with his Objections to that House in which it shall have originated, who\nshall enter the Objections at large on their Journal, and proceed to reconsider it. If after such\nReconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with\nthe Objections, to the other House, by which it shall likewise be reconsidered, and if approved by\ntwo thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses\nshall be determined by yeas and Nays, and the Names of the Persons voting for and against the\nBill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by\nthe President within ten Days (Sundays excepted) after it shall have been presented to him, the\nSame shall be a Law, in like Manner as if he had signed it, unless the Congress by their\nAdjournment prevent its Return, in which Case it shall not be a Law.\nEvery Order, Resolution, or Vote to which the Concurrence of the Senate and House of\nRepresentatives may be necessary (except on a question of Adjournment) shall be presented to the\nPresident of the United States; and before the Same shall take Effect, shall be approved by him, or\nbeing disapproved by him, shall be repassed by two thirds of the Senate and House of\nRepresentatives, according to the Rules and Limitations prescribed in the Case of a Bill.\n\nSection. 8.\n\n122\n\n\x0cThe Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the\nDebts and provide for the common Defence and general Welfare of the United States; but all\nDuties, Imposts and Excises shall be uniform throughout the United States;\nTo borrow Money on the credit of the United States;\nTo regulate Commerce with foreign Nations, and among the several States, and with the Indian\nTribes;\nTo establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies\nthroughout the United States;\nTo coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights\nand Measures;\nTo provide for the Punishment of counterfeiting the Securities and current Coin of the United\nStates;\nTo establish Post Offices and post Roads;\nTo promote the Progress of Science and useful Arts, by securing for limited Times to Authors and\nInventors the exclusive Right to their respective Writings and Discoveries;\nTo constitute Tribunals inferior to the supreme Court;\nTo define and punish Piracies and Felonies committed on the high Seas, and Offences against the\nLaw of Nations;\nTo declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on\nLand and Water;\nTo raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term\nthan two Years;\nTo provide and maintain a Navy;\nTo make Rules for the Government and Regulation of the land and naval Forces;\nTo provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections\nand repel Invasions;\nTo provide for organizing, arming, and disciplining, the Militia, and for governing such Part of\nthem as may be employed in the Service of the United States, reserving to the States respectively,\nthe Appointment of the Officers, and the Authority of training the Militia according to the\ndiscipline prescribed by Congress;\n\n123\n\n\x0cTo exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten\nMiles square) as may, by Cession of particular States, and the Acceptance of Congress, become\nthe Seat of the Government of the United States, and to exercise like Authority over all Places\npurchased by the Consent of the Legislature of the State in which the Same shall be, for the\nErection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;\xe2\x80\x94And\nTo make all Laws which shall be necessary and proper for carrying into Execution the foregoing\nPowers, and all other Powers vested by this Constitution in the Government of the United States,\nor in any Department or Officer thereof.\nSection. 9.\nThe Migration or Importation of such Persons as any of the States now existing shall think proper\nto admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and\neight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each\nPerson.\nThe Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of\nRebellion or Invasion the public Safety may require it.\nNo Bill of Attainder or ex post facto Law shall be passed.\nNo Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration\nherein before directed to be taken.\nNo Tax or Duty shall be laid on Articles exported from any State.\nNo Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State\nover those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or\npay Duties in another.\nNo Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law;\nand a regular Statement and Account of the Receipts and Expenditures of all public Money shall\nbe published from time to time.\nNo Title of Nobility shall be granted by the United States: And no Person holding any Office of\nProfit or Trust under them, shall, without the Consent of the Congress, accept of any present,\nEmolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.\nSection. 10.\nNo State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and\nReprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in\nPayment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation\nof Contracts, or grant any Title of Nobility.\nNo State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or\nExports, except what may be absolutely necessary for executing it\'s inspection Laws: and the net\n124\n\n\x0cProduce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of\nthe Treasury of the United States; and all such Laws shall be subject to the Revision and Controul\nof the Congress.\nNo State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships\nof War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign\nPower, or engage in War, unless actually invaded, or in such imminent Danger as will not admit\nof delay.\nArticle. II.\nSection. 1.\nThe executive Power shall be vested in a President of the United States of America. He shall hold\nhis Office during the Term of four Years, and, together with the Vice President, chosen for the\nsame Term, be elected, as follows\nEach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of\nElectors, equal to the whole Number of Senators and Representatives to which the State may be\nentitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or\nProfit under the United States, shall be appointed an Elector.\nThe Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom\none at least shall not be an Inhabitant of the same State with themselves. And they shall make a\nList of all the Persons voted for, and of the Number of Votes for each; which List they shall sign\nand certify, and transmit sealed to the Seat of the Government of the United States, directed to the\nPresident of the Senate. The President of the Senate shall, in the Presence of the Senate and House\nof Representatives, open all the Certificates, and the Votes shall then be counted. The Person\nhaving the greatest Number of Votes shall be the President, if such Number be a Majority of the\nwhole Number of Electors appointed; and if there be more than one who have such Majority, and\nhave an equal Number of Votes, then the House of Representatives shall immediately chuse by\nBallot one of them for President; and if no Person have a Majority, then from the five highest on\nthe List the said House shall in like Manner chuse the President. But in chusing the President, the\nVotes shall be taken by States, the Representation from each State having one Vote; A quorum for\nthis Purpose shall consist of a Member or Members from two thirds of the States, and a Majority\nof all the States shall be necessary to a Choice. In every Case, after the Choice of the President,\nthe Person having the greatest Number of Votes of the Electors shall be the Vice President. But if\nthere should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot\nthe Vice President.\nThe Congress may determine the Time of chusing the Electors, and the Day on which they shall\ngive their Votes; which Day shall be the same throughout the United States.\nNo Person except a natural born Citizen, or a Citizen of the United States, at the time of the\nAdoption of this Constitution, shall be eligible to the Office of President; neither shall any Person\nbe eligible to that Office who shall not have attained to the Age of thirty five Years, and been\nfourteen Years a Resident within the United States.\n\n125\n\n\x0cIn Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to\ndischarge the Powers and Duties of the said Office, the Same shall devolve on the Vice President,\nand the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability,\nboth of the President and Vice President, declaring what Officer shall then act as President, and\nsuch Officer shall act accordingly, until the Disability be removed, or a President shall be elected.\nThe President shall, at stated Times, receive for his Services, a Compensation, which shall neither\nbe encreased nor diminished during the Period for which he shall have been elected, and he shall\nnot receive within that Period any other Emolument from the United States, or any of them.\nBefore he enter on the Execution of his Office, he shall take the following Oath or Affirmation:\xe2\x80\x94\n"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United\nStates, and will to the best of my Ability, preserve, protect and defend the Constitution of the\nUnited States."\nSection. 2.\nThe President shall be Commander in Chief of the Army and Navy of the United States, and of the\nMilitia of the several States, when called into the actual Service of the United States; he may\nrequire the Opinion, in writing, of the principal Officer in each of the executive Departments, upon\nany Subject relating to the Duties of their respective Offices, and he shall have Power to grant\nReprieves and Pardons for Offences against the United States, except in Cases of Impeachment.\nHe shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided\ntwo thirds of the Senators present concur; and he shall nominate, and by and with the Advice and\nConsent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of\nthe supreme Court, and all other Officers of the United States, whose Appointments are not herein\notherwise provided for, and which shall be established by Law: but the Congress may by Law vest\nthe Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts\nof Law, or in the Heads of Departments.\nThe President shall have Power to fill up all Vacancies that may happen during the Recess of the\nSenate, by granting Commissions which shall expire at the End of their next Session.\nSection. 3.\nHe shall from time to time give to the Congress Information of the State of the Union, and\nrecommend to their Consideration such Measures as he shall judge necessary and expedient; he\nmay, on extraordinary Occasions, convene both Houses, or either of them, and in Case of\nDisagreement between them, with Respect to the Time of Adjournment, he may adjourn them to\nsuch Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he\nshall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the\nUnited States.\nSection. 4.\n\n126\n\n\x0cThe President, Vice President and all civil Officers of the United States, shall be removed from\nOffice on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and\nMisdemeanors.\nArticle III.\nSection. 1.\nThe judicial Power of the United States, shall be vested in one supreme Court, and in such inferior\nCourts as the Congress may from time to time ordain and establish. The Judges, both of the\nsupreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated\nTimes, receive for their Services, a Compensation, which shall not be diminished during their\nContinuance in Office.\nSection. 2.\nThe judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,\nthe Laws of the United States, and Treaties made, or which shall be made, under their Authority;\xe2\x80\x94\nto all Cases affecting Ambassadors, other public Ministers and Consuls;\xe2\x80\x94to all Cases of admiralty\nand maritime Jurisdiction;\xe2\x80\x94to Controversies to which the United States shall be a Party;\xe2\x80\x94to\nControversies between two or more States;\xe2\x80\x94 between a State and Citizens of another State,\xe2\x80\x94\nbetween Citizens of different States,\xe2\x80\x94between Citizens of the same State claiming Lands under\nGrants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens\nor Subjects.\nIn all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State\nshall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before\nmentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such\nExceptions, and under such Regulations as the Congress shall make.\nThe Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be\nheld in the State where the said Crimes shall have been committed; but when not committed within\nany State, the Trial shall be at such Place or Places as the Congress may by Law have directed.\nSection. 3.\nTreason against the United States, shall consist only in levying War against them, or in adhering\nto their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless\non the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.\nThe Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason\nshall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.\n\nArticle. IV.\nSection. 1.\nFull Faith and Credit shall be given in each State to the public Acts, Records, and judicial\nProceedings of every other State. And the Congress may by general Laws prescribe the Manner in\nwhich such Acts, Records and Proceedings shall be proved, and the Effect thereof.\n127\n\n\x0cSection. 2.\nThe Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the\nseveral States.\nA Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice,\nand be found in another State, shall on Demand of the executive Authority of the State from which\nhe fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.\nNo Person held to Service or Labour in one State, under the Laws thereof, escaping into another,\nshall, in Consequence of any Law or Regulation therein, be discharged from such Service or\nLabour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be\ndue.\nSection. 3.\nNew States may be admitted by the Congress into this Union; but no new State shall be formed or\nerected within the Jurisdiction of any other State; nor any State be formed by the Junction of two\nor more States, or Parts of States, without the Consent of the Legislatures of the States concerned\nas well as of the Congress.\nThe Congress shall have Power to dispose of and make all needful Rules and Regulations\nrespecting the Territory or other Property belonging to the United States; and nothing in this\nConstitution shall be so construed as to Prejudice any Claims of the United States, or of any\nparticular State.\nSection. 4.\nThe United States shall guarantee to every State in this Union a Republican Form of Government,\nand shall protect each of them against Invasion; and on Application of the Legislature, or of the\nExecutive (when the Legislature cannot be convened), against domestic Violence.\nArticle. V.\nThe Congress, whenever two thirds of both Houses shall deem it necessary, shall propose\nAmendments to this Constitution, or, on the Application of the Legislatures of two thirds of the\nseveral States, shall call a Convention for proposing Amendments, which, in either Case, shall be\nvalid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of\nthree fourths of the several States, or by Conventions in three fourths thereof, as the one or the\nother Mode of Ratification may be proposed by the Congress; Provided that no Amendment which\nmay be made prior to the Year One thousand eight hundred and eight shall in any Manner affect\nthe first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its\nConsent, shall be deprived of its equal Suffrage in the Senate.\nArticle. VI.\nAll Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall\nbe as valid against the United States under this Constitution, as under the Confederation.\nThis Constitution, and the Laws of the United States which shall be made in Pursuance thereof;\nand all Treaties made, or which shall be made, under the Authority of the United States, shall be\n128\n\n\x0cthe supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in\nthe Constitution or Laws of any State to the Contrary notwithstanding.\nThe Senators and Representatives before mentioned, and the Members of the several State\nLegislatures, and all executive and judicial Officers, both of the United States and of the several\nStates, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test\nshall ever be required as a Qualification to any Office or public Trust under the United States.\nArticle. VII.\nThe Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this\nConstitution between the States so ratifying the Same.\nAmendments to the Constitution\nARTICLES IN ADDITION TO, AND AMENDMENTS OF, THE CONSTITUTION OF THE\nUNITED STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE\nLEGISLATURES OF THE SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE OF\nTHE ORIGINAL CONSTITUTION\nAmendment 1\nCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise\nthereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to\nassemble, and to petition the Government for a redress of grievances.\nAmendment 2\nA well-regulated Militia, being necessary to the security of a free State, the right of the people to\nkeep and bear Arms, shall not be infringed.\nAmendment 3\nNo Soldier shall, in time of peace be quartered in any house, without the consent of the Owner,\nnor in time of war, but in a manner to be prescribed by law.\nAmendment 4\nThe right of the people to be secure in their persons, houses, papers, and effects, against\nunreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon\nprobable cause, supported by Oath or affirmation, and particularly describing the place to be\nsearched, and the persons or things to be seized.\nAmendment 5\nNo person shall be held to answer for a capital, or otherwise infamous crime, unless on a\npresentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or\nin the Militia, when in actual service in time of War or public danger; nor shall any person be\nsubject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in\nany criminal case to be a witness against himself, nor be deprived of life, liberty, or property,\n\n129\n\n\x0cwithout due process of law; nor shall private property be taken for public use, without just\ncompensation.\nAmendment 6\nIn all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an\nimpartial jury of the State and district wherein the crime shall have been committed, which district\nshall have been previously ascertained by law, and to be informed of the nature and cause of the\naccusation; to be confronted with the witnesses against him; to have compulsory process for\nobtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.\nAmendment 7\nIn Suits at common law, where the value in controversy shall exceed twenty dollars, the right of\ntrial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any\nCourt of the United States, than according to the rules of the common law.\nAmendment 8\nExcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual\npunishments inflicted.\nAmendment 9\nThe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage\nothers retained by the people.\nAmendment 10\nThe powers not delegated to the United States by the Constitution, nor prohibited by it to the States,\nare reserved to the States respectively, or to the people.\nAmendment 11\nThe Judicial power of the United States shall not be construed to extend to any suit in law or equity,\ncommenced or prosecuted against one of the United States by Citizens of another State, or by\nCitizens or Subjects of any Foreign State.\nAmendment 12\nThe Electors shall meet in their respective states, and vote by ballot for President and VicePresident, one of whom, at least, shall not be an inhabitant of the same state with themselves; they\nshall name in their ballots the person voted for as President, and in distinct ballots the person voted\nfor as Vice-President, and they shall make distinct lists of all persons voted for as President, and\nof all persons voted for as Vice-President, and of the number of votes for each, which lists they\nshall sign and certify, and transmit sealed to the seat of the government of the United States,\ndirected to the President of the Senate;--The President of the Senate shall, in the presence of the\nSenate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest number of votes for President, shall be the President, if such\nnumber be a majority of the whole number of Electors appointed; and if no person have such\nmajority, then from the persons having the highest numbers not exceeding three on the list of those\nvoted for as President, the House of Representatives shall choose immediately, by ballot, the\nPresident. But in choosing the President, the votes shall be taken by states, the representation from\n130\n\n\x0ceach state having one vote; a quorum for this purpose shall consist of a member or members from\ntwo-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the\nHouse of Representatives shall not choose a President whenever the right of choice shall devolve\nupon them, before the fourth day of March next following, then the Vice-President shall act as\nPresident, as in the case of the death or other constitutional disability of the President. --The person\nhaving the greatest number of votes as Vice-President, shall be the Vice-President, if such number\nbe a majority of the whole number of Electors appointed, and if no person have a majority, then\nfrom the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for\nthe purpose shall consist of two-thirds of the whole number of Senators, and a majority of the\nwhole number shall be necessary to a choice. But no person constitutionally ineligible to the office\nof President shall be eligible to that of Vice-President of the United States.\nAmendment 13\nSection 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the\nparty shall have been duly convicted, shall exist within the United States, or any place subject to\ntheir jurisdiction.\nSection 2. Congress shall have power to enforce this article by appropriate legislation.\nAmendment 14\nSection 1. All persons born or naturalized in the United States, and subject to the jurisdiction\nthereof, are citizens of the United States and of the State wherein they reside. No State shall make\nor enforce any law which shall abridge the privileges or immunities of citizens of the United States;\nnor shall any State deprive any person of life, liberty, or property, without due process of law; nor\ndeny to any person within its jurisdiction the equal protection of the laws.\nSection 2. Representatives shall be apportioned among the several States according to their\nrespective numbers, counting the whole number of persons in each State, excluding Indians not\ntaxed. But when the right to vote at any election for the choice of electors for President and Vice\nPresident of the United States, Representatives in Congress, the Executive and Judicial officers of\na State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such\nState, being twenty-one years of age, and citizens of the United States, or in any way abridged,\nexcept for participation in rebellion, or other crime, the basis of representation therein shall be\nreduced in the proportion which the number of such male citizens shall bear to the whole number\nof male citizens twenty-one years of age in such State.\nSection 3. No person shall be a Senator or Representative in Congress, or elector of President and\nVice President, or hold any office, civil or military, under the United States, or under any State,\nwho, having previously taken an oath, as a member of Congress, or as an officer of the United\nStates, or as a member of any State legislature, or as an executive or judicial officer of any State,\nto support the Constitution of the United States, shall have engaged in insurrection or rebellion\nagainst the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of\ntwo-thirds of each House, remove such disability.\nSection 4. The validity of the public debt of the United States, authorized by law, including debts\nincurred for payment of pensions and bounties for services in suppressing insurrection or rebellion,\n131\n\n\x0cshall not be questioned. But neither the United States nor any State shall assume or pay any debt\nor obligation incurred in aid of insurrection or rebellion against the United States, or any claim for\nthe loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal\nand void.\nSection 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of\nthis article.\nAmendment 15\nSection 1. The right of citizens of the United States to vote shall not be denied or abridged by the\nUnited States or by any State on account of race, color, or previous condition of servitude.\nSection 2. The Congress shall have power to enforce this article by appropriate legislation.\nAmendment 16\nThe Congress shall have power to lay and collect taxes on incomes, from whatever source derived,\nwithout apportionment among the several States, and without regard to any census or enumeration.\nAmendment 17\nThe Senate of the United States shall be composed of two Senators from each State, elected by the\npeople thereof, for six years; and each Senator shall have one vote. The electors in each State shall\nhave the qualifications requisite for electors of the most numerous branch of the State legislatures.\nWhen vacancies happen in the representation of any State in the Senate, the executive authority of\nsuch State shall issue writs of election to fill such vacancies: Provided, That the legislature of any\nState may empower the executive thereof to make temporary appointments until the people fill the\nvacancies by election as the legislature may direct.\nThis amendment shall not be so construed as to affect the election or term of any Senator chosen\nbefore it becomes valid as part of the Constitution.\nAmendment 18\nSection 1. After one year from the ratification of this article the manufacture, sale, or transportation\nof intoxicating liquors within, the importation thereof into, or the exportation thereof from the\nUnited States and all territory subject to the jurisdiction thereof for beverage purposes is hereby\nprohibited.\nSection. 2. The Congress and the several States shall have concurrent power to enforce this article\nby appropriate legislation.\nSection. 3. This article shall be inoperative unless it shall have been ratified as an amendment to\nthe Constitution by the legislatures of the several States, as provided in the Constitution, within\nseven years from the date of the submission hereof to the States by the Congress.\nAmendment 19\nThe right of citizens of the United States to vote shall not be denied or abridged by the United\nStates or by any State on account of sex.\n\n132\n\n\x0cCongress shall have power to enforce this article by appropriate legislation.\nAmendment 20\nSection 1. The terms of the President and Vice President shall end at noon on the 20th day of\nJanuary, and the terms of Senators and Representatives at noon on the 3d day of January, of the\nyears in which such terms would have ended if this article had not been ratified; and the terms of\ntheir successors shall then begin.\nSection. 2. The Congress shall assemble at least once in every year, and such meeting shall begin\nat noon on the 3d day of January, unless they shall by law appoint a different day.\nSection. 3. If, at the time fixed for the beginning of the term of the President, the President elect\nshall have died, the Vice President elect shall become President. If a President shall not have been\nchosen before the time fixed for the beginning of his term, or if the President elect shall have failed\nto qualify, then the Vice President elect shall act as President until a President shall have qualified;\nand the Congress may by law provide for the case wherein neither a President elect nor a Vice\nPresident elect shall have qualified, declaring who shall then act as President, or the manner in\nwhich one who is to act shall be selected, and such person shall act accordingly until a President\nor Vice President shall have qualified.\nSection. 4. The Congress may by law provide for the case of the death of any of the persons from\nwhom the House of Representatives may choose a President whenever the right of choice shall\nhave devolved upon them, and for the case of the death of any of the persons from whom the\nSenate may choose a Vice President whenever the right of choice shall have devolved upon them.\nSection. 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification\nof this article.\nSection. 6. This article shall be inoperative unless it shall have been ratified as an amendment to\nthe Constitution by the legislatures of three-fourths of the several States within seven years from\nthe date of its submission.\nAmendment 21\nSection 1. The eighteenth article of amendment to the Constitution of the United States is hereby\nrepealed.\nSection 2. The transportation or importation into any State, Territory, or possession of the United\nStates for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby\nprohibited.\nSection 3. This article shall be inoperative unless it shall have been ratified as an amendment to\nthe Constitution by conventions in the several States, as provided in the Constitution, within seven\nyears from the date of the submission hereof to the States by the Congress.\nAmendment 22\n\n133\n\n\x0cSection 1. No person shall be elected to the office of the President more than twice, and no person\nwho has held the office of President, or acted as President, for more than two years of a term to\nwhich some other person was elected President shall be elected to the office of the President more\nthan once. But this Article shall not apply to any person holding the office of President when this\nArticle was proposed by the Congress, and shall not prevent any person who may be holding the\noffice of President, or acting as President, during the term within which this Article becomes\noperative from holding the office of President or acting as President during the remainder of such\nterm.\nSection. 2. This article shall be inoperative unless it shall have been ratified as an amendment to\nthe Constitution by the legislatures of three-fourths of the several States within seven years from\nthe date of its submission to the States by the Congress.\nAmendment 23\nSection 1. The District constituting the seat of Government of the United States shall appoint in\nsuch manner as the Congress may direct:\nA number of electors of President and Vice President equal to the whole number of Senators and\nRepresentatives in Congress to which the District would be entitled if it were a State, but in no\nevent more than the least populous State; they shall be in addition to those appointed by the States,\nbut they shall be considered, for the purposes of the election of President and Vice President, to be\nelectors appointed by a State; and they shall meet in the District and perform such duties as\nprovided by the twelfth article of amendment.\nSection. 2. The Congress shall have power to enforce this article by appropriate legislation.\nAmendment 24\nSection 1. The right of citizens of the United States to vote in any primary or other election for\nPresident or Vice President, for electors for President or Vice President, or for Senator or\nRepresentative in Congress, shall not be denied or abridged by the United States or any State by\nreason of failure to pay any poll tax or other tax.\nSection. 2. The Congress shall have power to enforce this article by appropriate legislation.\nAmendment 25\nSection 1. In case of the removal of the President from office or of his death or resignation, the\nVice President shall become President.\nSection. 2. Whenever there is a vacancy in the office of the Vice President, the President shall\nnominate a Vice President who shall take office upon confirmation by a majority vote of both\nHouses of Congress.\nSection. 3. Whenever the President transmits to the President pro tempore of the Senate and the\nSpeaker of the House of Representatives his written declaration that he is unable to discharge the\npowers and duties of his office, and until he transmits to them a written declaration to the contrary,\nsuch powers and duties shall be discharged by the Vice President as Acting President.\n\n134\n\n\x0cSection. 4. Whenever the Vice President and a majority of either the principal officers of the\nexecutive departments or of such other body as Congress may by law provide, transmit to the\nPresident pro tempore of the Senate and the Speaker of the House of Representatives their written\ndeclaration that the President is unable to discharge the powers and duties of his office, the Vice\nPresident shall immediately assume the powers and duties of the office as Acting President.\nThereafter, when the President transmits to the President pro tempore of the Senate and the Speaker\nof the House of Representatives his written declaration that no inability exists, he shall resume the\npowers and duties of his office unless the Vice President and a majority of either the principal\nofficers of the executive department or of such other body as Congress may by law provide,\ntransmit within four days to the President pro tempore of the Senate and the Speaker of the House\nof Representatives their written declaration that the President is unable to discharge the powers\nand duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight\nhours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the\nlatter written declaration, or, if Congress is not in session, within twenty-one days after Congress\nis required to assemble, determines by two-thirds vote of both Houses that the President is unable\nto discharge the powers and duties of his office, the Vice President shall continue to discharge the\nsame as Acting President; otherwise, the President shall resume the powers and duties of his office.\nAmendment 26\nSection 1. The right of citizens of the United States, who are eighteen years of age or older, to vote\nshall not be denied or abridged by the United States or by any State on account of age.\nSection. 2. The Congress shall have power to enforce this article by appropriate legislation.\nAmendment 27\nNo law, varying the compensation for the services of the Senators and Representatives, shall take\neffect, until an election of Representatives shall have intervened.\n\nChapter 4 Appendix D: From a NYS trial to the U.S. Supreme Court\n\n135\n\n\x0c136\n\n\x0cHow a New York State case makes it to the U.S. Supreme Court\n\nUNITED STATES\nSUPREME COURT\n(Washington, D.C.)\nNeed Permission to Appeal on\na Federal Constitutional Issue\n(Writ of Certiorari)\n\nNEW YORK COURT\nOF APPEALS\n(Albany, New York)\n\nNeed Permission to Appeal\n\nAPPELLATE\nDIVISION STATE\nSUPREME COURT\n\nCan Appeal Once as a Matter of\nRight to State Supreme Court,\nAppellate Division\n\nCOUNTY COURT\nTrial Court With\nJury Present\n137\n\n\x0cReferences:\n(n.d.). Retrieved June 22, 2018, from https://www.archives.gov/\nFein, S. N., & Ayers, A. B. (Eds.). (2017, April 18). Protections in the New York State\nConstitution Beyond the Federal Bill of Rights. Retrieved June 24, 2018, from\nhttp://www.albanylaw.edu/centers/government-law-center/stateconstitution\nFind Laws, Legal Information, and Attorneys. (n.d.). Retrieved June 11, 2018, from\nhttps://www.findlaw.com/\nHISTORY | Watch Full Episodes of Your Favorite Shows. (n.d.). Retrieved June 23, 2018, from\nhttps://www.history.com/\nHome Page. (n.d.). Retrieved July 23, 2018, from https://www.whitehouse.gov/\nJustia Law. (n.d.). Retrieved July 23, 2018, from https://law.justia.com/\nMain Page. (n.d.). Retrieved June 22, 2018, from https://ballotpedia.org/Main_Page\nMount, S. (n.d.). The Constitution Explained - The U.S. Constitution Online. Retrieved June 24,\n2018, from https://www.usconstitution.net/constquick.html\nNew York State. (n.d.). New York State Unified Court System. Retrieved June 11, 2018, from\nhttp://nycourts.gov/\nNew York State Department of State. (n.d.). Retrieved June 23, 2018, from\nhttp://www.dos.ny.gov/\nPogue, D. L., Clifford, E., & Schwartz, A. L. (2009). Understanding New York Law, 2013-14.\nUpstate Legal Publishers\nSupreme Court of the United States Home. (n.d.). Retrieved June 23, 2018, from\nhttps://www.supremecourt.gov/\nWelcome to LII. (n.d.). Retrieved July 23, 2018, from https://www.law.cornell.edu/\n\n138\n\n\x0cCHAPTER 5\nTHE PATH OF A NEW YORK STATE CRIMINAL CASE\nINTRODUCTION:\nWhen many people think of the law, they gravitate to criminal law. An abundance of books,\nmovies, documentaries, and television shows are based on criminal law storylines. However, it is\nthe rare movie or television show that portrays criminal cases as they really are. This chapter will\nexplain the path from arrest to trial to appeal of a New York State criminal case. To better facilitate\nan understanding of a criminal trial, one must also understand the basics of the NY Penal Law and\nCriminal Procedure Law (CPL).\n\nPART I: HOW DOES THE PENAL LAW CLASSIFY CRIMES?\nNYS classifies crimes first by category which is based on the amount of possible incarceration\ntime. There are three categories; felonies, where possible incarceration is more than one year,\nmisdemeanors, where possible incarceration is one year or less, and violations, which technically\nare not crimes. NYS then classifies these three categories first by class and then by degree.\n1) Felonies \xe2\x80\x93 These are the most serious of all crimes and are punishable by more than one\nyear in prison. They are classified from Class A-1 felonies being the most serious to Class\nE. felonies being the least serious. Below are the general guidelines for the possible\nincarceration sentence for these felonies when there is no previous criminal history.\nOffense\n\'A-I & II\' Violent Felony\n\'B\' Violent Felony\n\'B\' Non Violent Felony\n\'C\' Violent Felony\n\'C\' Non Violent Felony\n\nSentence\nLife, 20-25 years\n5-25 years\n1-3, Max 25 years\n3 1/2 to 15 years\nNo Incarceration, Probation, 1-2 years to\n15 years\n2-7 years\nNo incarceration, Probation, 1-3 to 7 years\nNo incarceration, Probation, 1 1/2 to 4\nyears\nNo incarceration, Probation, 1 1/3 to 4\nyears\n\n\'D\' Violent Felony\n\'D\' Non Violent Felony\n\'E\' Violent Felony\n\'E\' Non Violent Felony\n\nOffense\n\xe2\x80\xa2 \'A-I & II\' Violent Felony\n\xe2\x80\xa2 \'B\' Violent Felony\n\xe2\x80\xa2 \'B\' Non Violent Felony\n\xe2\x80\xa2 \'C\' Violent Felony\n\xe2\x80\xa2 \'C\' Non Violent Felony\n\nSentence\nLife, 20-25 years\n5-25 years\n1-3, Max 25 years\n3 1/2 to 15 years\nNo Incarceration, Probation, 1-2 years to 15 years\n139\n\n\x0c\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\n\'D\' Violent Felony\n\'D\' Non Violent Felony\n\'E\' Violent Felony\n\'E\' Non Violent Felony\n\n2-7 years\nNo incarceration, Probation, 1-3 to 7 years\nNo incarceration, Probation, 1 1/2 to 4 years\nNo incarceration, Probation, 1 1/3 to 4 years\n\nExamples of each class of felony:\nA-I\n\xe2\x80\xa2 Murder in the First Degree\n\xe2\x80\xa2 Murder in the Second Degree\n\xe2\x80\xa2 Criminal sale of a controlled substance in the first degree\nA-II\n\xe2\x80\xa2 Predatory sexual assault\n\xe2\x80\xa2 Predatory sexual assault against a child\n\xe2\x80\xa2 Criminal possession of a controlled substance in the second degree\nB (Violent)\n\xe2\x80\xa2 Assault in the first degree\n\xe2\x80\xa2 Aggravated assault upon a police officer or a peace officer\n\xe2\x80\xa2 Burglary in the first degree\nB (Non-Violent)\n\xe2\x80\xa2 Grand larceny in the first degree\n\xe2\x80\xa2 Aggravated vehicular homicide\n\xe2\x80\xa2 Sex trafficking\nC (Violent)\n\xe2\x80\xa2 Burglary in the second degree\n\xe2\x80\xa2 Strangulation in the first degree\n\xe2\x80\xa2 Assault on a peace officer, police officer, fireman or emergency medical services\nprofessional\nC (Non-Violent)\n\xe2\x80\xa2 Forgery in the first degree\n\xe2\x80\xa2 Criminal possession of a controlled substance in the fourth degree\n\xe2\x80\xa2 Criminal possession of marihuana in the first degree\nD (Violent)\n\xe2\x80\xa2 Rape in the second degree\n\xe2\x80\xa2 Criminal possession of a weapon in the third degree\n\xe2\x80\xa2 Assault in the second degree\nD (Non-Violent)\n\xe2\x80\xa2 Burglary in the third degree\n\xe2\x80\xa2 Perjury in the first degree\n\xe2\x80\xa2 Unlawful fleeing a police officer in a motor vehicle in the first degree\nE (Violent)\n\xe2\x80\xa2 Aggravated sexual abuse in the fourth degree\n\xe2\x80\xa2 Falsely reporting an incident in the second degree\nE (Non-Violent)\n\xe2\x80\xa2 Menacing in the first degree\n140\n\n\x0c\xe2\x80\xa2\n\nRape in the third degree\n\n2) Misdemeanors \xe2\x80\x93 These are crimes punishable by one year or less in jail. Class A misdemeanors\nare punishable by up to one year in jail and fines up to $1,000. Class B misdemeanors are\npunishable by up to 90 days in jail and fines up to $500. There are also unclassified misdemeanors.\nThe incarceration time and fines vary depending on the crime committed.\nExamples of each class of misdemeanors:\nClass A\n\xe2\x80\xa2 Petit larceny\n\xe2\x80\xa2 Carrying a gun without a permit\n\xe2\x80\xa2 Second-degree criminal impersonation\n\xe2\x80\xa2 Third-degree identity theft\nClass B\n\xe2\x80\xa2 Issuing a bad check\n\xe2\x80\xa2 Fortune-telling\n\xe2\x80\xa2 Prostitution\nUnclassified\n\xe2\x80\xa2 Aggravated unlicensed driving\n\xe2\x80\xa2 Driving while intoxicated\n3) Violations \xe2\x80\x93 These are not \xe2\x80\x9ccrimes\xe2\x80\x9d in New York. While they are part of the Penal Law along\nwith felonies and misdemeanors, they do not rise to the level of crimes. If convicted of a violation,\nyou would not under the law have been convicted of a crime. So, even with a violation conviction,\nif asked on an employment form if you have ever been convicted of a crime, you would be\nanswering honestly with a response of no. However, a violation conviction can include up to fifteen\ndays in jail, fines, and community service.\nExamples of violations:\n\xe2\x80\xa2 Disorderly conduct\n\xe2\x80\xa2 Unlawful possession of marihuana\n\xe2\x80\xa2 Trespass\nWHAT DETERMINES THE DEGREE OF A CRIME?\nAggravating factors generally influence the "degree" of the crime. The most serious crimes are\nlabeled first degree, and they become less serious as the degrees increase. So, for example, assault\nin the third degree is less serious than assault in the second degree, which is less serious than\nassault in the first degree.\nExamples of aggravating factors:\nWeapons:\nThe use of guns or knives greatly increases the chances that somebody will get hurt. If a person\nemploys a weapon, it usually raises the level of the crime and results in greater punishment.\n\n141\n\n\x0cDegree of physical injury: If a person is hurt badly, it becomes a more serious crime. Assault\nwould be the most common example of a crime having the level of physical injury as an\naggravating factor.\nAmount of damage or money or drugs:\nThe higher the amount of damage caused, or money stolen, or drugs illegally possessed, the higher\ndegree of the crime. For example, if you shoplift an item worth $999, it is a misdemeanor.\nHowever, if you steal an item worth $1,001, it is a felony. Criminal possession of marihuana in\nthe fifth degree is when you possess more than twenty-five grams but less than two ounces. This\nis a class B misdemeanor. Possess more than 8 ounces and you will be charged with Criminal\npossession of marihuana in the third degree, which is a class E felony.\nCulpable mental state:\nDid the defendant intend to commit the crime or was he just reckless? Intent matters. The law\nconsiders crimes that are intentionally committed as more serious. For example, if you intend to\nkill someone and, in fact, you kill that person, this is Murder in the Second Degree, punishable by\nlife imprisonment. If you only intended to hurt him but, in fact, he dies, this is Manslaughter in\nthe First Degree, punishable by twenty-five years in prison. If you were merely acting recklessly,\nbut without the intent to kill or harm another even though the death of another resulted, that would\nbe Manslaughter Second Degree, punishable by a maximum of fifteen years.\nType of building:\nThe law considers illegally entering certain buildings and areas more serious than others. If you\nwere to illegally enter a fenced-in area, this would constitute Criminal Trespass in the Third\nDegree, a class A misdemeanor. Unlawfully enter a detached garage with the intent to commit a\ncrime therein, constitutes Burglary in the Third Degree, a class D felony, punishable by up to seven\nyears in prison. Unlawfully enter a person\xe2\x80\x99s home and this is Burglary in the Second Degree, a\nclass B felony, punishable by up to twenty-five years in prison.\nNumber of times a defendant has been convicted of a crime:\nCommit certain crimes more than once and the same action becomes more serious. For example,\nthe first time you are arrested and convicted of Driving While Intoxicated, it is a misdemeanor\n(unless you have a minor in your vehicle while driving intoxicated, which makes it a felony). If,\nafter this conviction, you are arrested for Driving While Intoxicated within the next ten years, you\nwill be charged with a felony.\nNew York law allows for increased sentences of persons convicted of two or more felonies in a\nten-year period, excluding time of incarceration. New York has several sentencing categories for\nfelony offenders. They include non-predicate felony offenders, predicate felony offenders, violent\nfelony offenders, persistent felony offenders, and persistent violent felony offenders. There are\nalso categories for the number of times a person is convicted of certain drug offenses.\nAge of the victim and defendant:\nCrimes committed against children, and by children, are treated differently under the law. When\nchildren are victims, the crime is considered more serious. When a person over the age of twentyone has consensual sexual intercourse with a person whom they are not married to, and who is\n142\n\n\x0cunder the age of seventeen, it is Rape in the Third Degree. It is a crime because the victim is child.\nThis law says that a child under the age of seventeen is incapable of making the decision to consent\nto the sexual act.\nThe age of children committing a crime also matters. Children under the age of seven cannot\ncommit a crime regardless of their actions. Crimes committed by juvenile offenders, which is\ndependent on the age of the defendant and the seriousness of the crime committed, will be heard\nin family court rather than a criminal court.\n\nPART 2: WHAT IS THE PATH OF A NEW YORK CRIMINAL CASE FROM\nARREST TO APPEAL?\n1. FILING OF THE ACCUSATORY INSTRUMENT:\nThe filing of an accusatory instrument is the official beginning of the criminal proceeding. It can\noccur before or after an arrest. If no accusatory instrument is filed, the court does not have\njurisdiction over the case. It is this instrument which formally accuses the suspect of a crime.\nThese accusatory instruments are called:\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nAn information; or\nA simplified information; or\nA prosecutor`s information; or\nA misdemeanor complaint; or\nA felony complaint; or\nA felony indictment.\n\n2. ARREST\nThe terms "custody" and "arrest" are often used interchangeably. A person is under arrest when\nhis freedom of movement is materially restricted. In other words, when a person legitimately feels\nthey are not free to just leave the scene. The circumstances surrounding the stop of the suspect, as\nwell as the actions of the police officers, dictate whether or not the suspect is under arrest by the\npolice.\nFrequently a suspect is arrested by the police before the accusatory instrument is filed. The arrest\ncan occur either before such filing (assuming that probable cause exists) or after the filing.\nCommonly, if the accusatory instrument is filed first, the police request the local criminal court to\nissue a warrant for the suspect\'s arrest. It is the filing of the accusatory instrument, not the arrest\nthat officially commences the criminal proceeding. For many non-violent crimes, no arrest\nactually occurs. The Court where the accusatory instrument is filed issues a summons to appear,\nand this summons is sent to the defendant to advise him of the date he is to appear in court.\n3. BOOKING:\nOnce the suspect is arrested and/or appears in court, he will be "booked." This includes\nfingerprinting and being photographed, which is often referred to as a mug shot. This data is then\nsent to the New York State Division of Criminal Justice Services\xe2\x80\x99 computerized criminal record\nindex where a fingerprint report, (sometimes referred to as a rap sheet) is compiled. This report\n143\n\n\x0cwill show the accused person\xe2\x80\x99s prior criminal record, if one exists.\n4. ARRAIGNMENT (CPL \xc2\xa7\xc2\xa7 170.10, 180.10)\nThe arraignment is the first appearance of the defendant before a judge. It will occur in the local\ncriminal court which has geographic jurisdiction over the crime, and therefore the defendant. At\nthis arraignment, the defendant will:\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nBe told what crime he/she is charged with.\nPerhaps be given the opportunity to post bail.\nWill be advised that he/she has the right to counsel. If it is determined the defendant cannot\nafford counsel, one may be appointed at this time.\nWill be informed by the judge of their basic rights.\nIf charged with a felony, the defendant is informed of his/her right to a preliminary hearing\nor a grand jury indictment. If the defendant is being held in custody, the hearing must be\nheld within 120-144 hours of arrest depending on whether the time period includes a\nweekend.\n\na) FELONY COMPLAINT:\nWhile the defendant is initially arraigned in a local court, regardless of seriousness of the\ncharge, (referred to as an inferior court), the local court does not have the jurisdiction to try\nfelony cases. Therefore, if the defendant is being charged with a felony, the prosecution will\nhave to obtain an indictment from a grand jury within six months for the case to proceed. If\nthe grand jury indicts the defendant, the case will be moved to a superior court which outside\nof NYC is a county or supreme court.\nb) PRELIMINARY HEARING: (For felony cases only, CPL \xc2\xa7 180.60.)\nThe purpose of a preliminary hearing is to determine whether the evidence against the\ndefendant is sufficient to hold the defendant before the grand jury can hear the case. If the\njudge presiding over the preliminary hearing finds there is reasonable/probable cause to believe\nthat the defendant committed a felony, the judge can decide whether to incarcerate the\ndefendant pending the grand jury, or set bail for the defendant\xe2\x80\x99s release. The preliminary\nhearing is held in the local criminal court in which the suspect is arraigned. At this hearing, the\nDistrict Attorney must establish reasonable grounds to believe that a felony has been\ncommitted and that the accused committed it. There is no jury present for a preliminary\nhearing. The D.A. need not establish proof beyond a reasonable doubt.\nc) PROBABLE CAUSE, REASONABLE CAUSE, AND REASONABLE SUSPICION:\nIn NYS, probable cause and reasonable cause mean the same thing. The Court of Appeals has\ndefined probable cause as being "... at least more probable than not that a crime has taken place\nand that the one arrested is its perpetrator, for conduct equally compatible with guilt or\ninnocence will not suffice ...." People v. Carrasquillo, 54 NY2d 248, 254 (1981). CPL Section\n70.10(2) defines reasonable cause as follows: \xe2\x80\x9c\xe2\x80\x99Reasonable cause to believe that a person has\ncommitted an offense\xe2\x80\x99 exists when evidence or information which appears reliable discloses\nfacts or circumstances which are collectively of such weight and persuasiveness as to convince\na person of ordinary intelligence, judgment and experience that it is reasonably likely that such\noffense was committed and that such person committed it. Except as otherwise provided in\nthis chapter, such apparently reliable evidence may include or consist of hearsay. Reasonable\n144\n\n\x0csuspicion is a lower standard. It only requires a strong suspicion, even if based on less\ninformation of a less-reliable nature, that a person is involved in criminal activity or may be\narmed and dangerous.\nd) GRAND JURY\nCPL Section 190.05 requires that the grand jury consists of a minimum of 16 and a maximum\nof 23 jurors. It also requires that the grand jury proceedings are to be conducted in secret.\nBesides the grand jurors themselves, the Assistant District Attorney, the witness, and a court\nstenographer are the only ones generally present. A grand jury may vote for a \xe2\x80\x9cTrue Bill of\nIndictment,\xe2\x80\x9d which means that felony charges in an indictment will be brought against the\naccused, or the grand jury may return a "No Bill," which means that insufficient evidence has\nbeen presented to bring charges against the accused. It the grand jury finds that there is\ninsufficient evidence to support a felony charge, but sufficient evidence has been presented to\nsupport a misdemeanor charge, the grand jury will then direct the District Attorney to file a\n"Prosecutor\'s Information" back in local criminal court pursuant to CPL Section 190.70.\ne) ARRAIGNMENT IN SUPERIOR COURT (CPL \xc2\xa7 210.15)\nIf the grand jury issues a true bill of indictment, the defendant must then be arraigned on the\nnew accusatory instrument, which is now the indictment. This post indictment arraignment\nwill now occur in a superior court, which outside of NYC is a county court or supreme court.\nAt this post indictment arraignment, the defendant is now advised of the charges contained in\nthe indictment. They may be the same or different than those charged in the original felony\ncomplaint. The defendant is advised of his/her right to counsel. The issue of bail will also be\nrevisited if necessary.\n5. BAIL:\nBail is the amount of money or security that a judge places as a condition of release of a defendant\nafter arraignment. It is set to guarantee of the defendant\xe2\x80\x99s appearance in court for a future date.\nReasonable bail is a requirement of both the Eighth Amendment of the United States Constitution\nand Article I Section 5 of the New York Constitution. Defendants are presumed innocent until\nproven guilty. When setting bail, the judge may consider the defendant\xe2\x80\x99s residence, employment,\neducation, past criminal record, previous compliance with court orders, previous failure to appear\nin court when required to do so, the seriousness of the crime, and possible sentence if convicted.\nFederal courts can deny bail if the defendant is considered a danger to society. This is not the law\nin NYS, and not something New York courts can consider.\n6. DISCOVERY: (CPL \xc2\xa7 240)\nPursuant to the Bill of Rights, a defendant has a right to know of all the charges and evidence that\nwill be presented at their criminal trial against them, so they can formulate a proper defense.\nPursuant to CPL \xc2\xa7 240.20, the defendant can make a demand on the prosecution to produce a long\nlist of items that the prosecution has in their possession such as photographs, recordings, lab\nresults, transcripts, drawings, videos, and \xe2\x80\x9cAnything required to be disclosed, prior to trial, to the\ndefendant by the prosecutor, pursuant to the constitution of this state or of the United States.\xe2\x80\x9d\n7. FORTY-FIVE DAY PRE-TRIAL MOTION PERIOD (CPL \xc2\xa7 255.20)\n145\n\n\x0cAfter arraignment, the defense has forty-five days to bring what are called pre-trial motions before\nthe court. These motions are often made to obtain clarification on factual issues of the case, have\nevidence suppressed, or even have the charges reduced or dismissed.\n8. PRETRIAL HEARINGS:\nOnce the defendant receives various discovery items from the prosecution, the defendant may\nbelieve that certain evidence is missing, or was improperly obtained or tested. The defendant may\nbelieve that the police did not follow proper procedures, or that the evidence being used against\nthem is tainted or false. In these types of situations and many others, the defendant will request a\npre-trial hearing before the court, with no jury present, to discern what should be done with this\nevidence, or testimony, or charges against the defendant. These various pre-trial hearings are often\nnamed after previous cases where this legal issue was decided and created or clarified the law.\nThe following are just a few of the common pre-trial hearings.\nWade Hearing \xe2\x80\x93 A Wade hearing is a pretrial hearing to contest the validity of a prior\nidentification procedure involving the accused such as an illegal line-up or photo array.\nHuntley Hearing \xe2\x80\x93 A Huntley hearing is a pretrial hearing to determine whether a statement,\nconfession, or admission made by a defendant to the police should be suppressed if such statement\nwas taken in violation of the defendant\xe2\x80\x99s constitutional rights.\nMapp Hearing \xe2\x80\x93 A Mapp hearing is a pretrial hearing to determine the admissibility of physical\nevidence seized by the government.\nDunaway Hearing - A Dunaway hearing is always held in combination with a Mapp, Huntley, or\nWade hearing. It is a hearing where the defendant is seeking to suppress evidence obtained by the\npolice that are the fruit of an unlawful arrest without probable cause.\n8. JURY TRIAL:\na. JURY SELECTION:\nJury Selection is also known as Voir Dire. Jury selection begins with a panel of jurors randomly\nselected by the Commissioner of Jurors. The Commissioner of Jurors provides a standard\nbackground questionnaire to be completed by all prospective jurors and used by counsel as a\ntool to facilitate voir dire.\nThe following are the qualifications necessary to serve as a juror in NYS as set out in the\nJudiciary Law.\n\xe2\x80\xa2 The person must be a citizen of the United States, and a resident of the county.\n\xe2\x80\xa2 The person must be at least eighteen years of age.\n\xe2\x80\xa2 The person cannot have a felony record.\n\xe2\x80\xa2 The person is able to understand and communicate in the English language.\nPursuant the Judiciary Law, Article 16, \xc2\xa7 519, employers cannot prohibit you from serving as\na juror. They may or may not have to pay you depending on the number of employees of the\ncompany.\n146\n\n\x0cChallenges for cause are unlimited if the attorney can demonstrate a valid reason for such\naction. Some examples would be if a juror is related to a party or key witness, or if the juror\nexhibits some bias or prejudice which makes it impossible for them to be fair and impartial.\nPeremptory challenges are limited by statute because they do not require any specific reason\nfor dismissing a juror from the panel. The more serious crimes have more peremptory\nchallenges available. For example, class A felonies have twenty peremptory challenges, plus\ntwo for each alternative juror. Class B and C felonies only have fifteen and all other felonies\nhave ten. As already mentioned, attorneys do not need a reason when using their peremptory\nchallenges, except they cannot exclude a juror solely because of their race or gender. See\nBatson v Kentucky, 476 U.S. 79 (1986.) and J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127\n(1994).\nb.\n\nPRELIMINARY INSTRUCTIONS: (CPL \xc2\xa7 260.30 (2))\nJudges are required to give preliminary instructions to the jury. The judge will advise the jury\nof what is considered appropriate and inappropriate behavior during the trial. The judge will\ninform the jurors that they are required to keep open minds. That they must not deliberate until\nthey have been given the law by the court at the end of the trial. They will be instructed that\nthey are not to discuss the case with anyone until they begin their deliberations with their fellow\njurors. They will be told that they are not to visit the scene of the crime, look for information\nabout the case on the internet, or talk with the attorneys, the defendant, or any witnesses.\nc. OPENING STATEMENTS: (CPL \xc2\xa7 260.30 (3))\nThe District Attorney is required by New York law to make an opening statement to the jury\nand go first. The purpose is to give the outline of the case to the jury.\nThe defense attorney is not required to make an opening statement under the law. However, it\nis rare that they do not. Since the criminal defendant has no burden of proof, the defense\nattorneys opening statement may merely ask the jury to maintain open minds and not prejudge\nthe case before all the evidence and testimony is presented. Defense attorneys will often take\nthe opportunity during the opening statement to remind the jurors that the defense has no\nburden of proof and that the jurors agreed during voir dire questioning that they would be\nunbiased and fair. They may add something to the effect that they are sure at the conclusion of\nthe trial that the jurors, based on everything presented at the trial, will find the defendant not\nguilty.\nd. PRESENTATION OF EVIDENCE: (CPL \xc2\xa7 260.30 (5))\ni) Prosecution\nSince the District Attorney has the burden of proof, they are required by law to present\nwitnesses and evidence that proves all the elements of the crime(s) charged. This means\nthe District Attorney is solely responsible for going forward with evidence.\nii) Defense\nUsually at this point, the defense will make a motion to the court to have the case dismissed\non the basis that the district attorney did not prove its case. It is not usual that that judges\n\n147\n\n\x0cdismiss cases on these motions, but it does happen if the judge feels the district attorney\ndid not present enough evidence to prove the case.\nSince the defense does not have to prove anything, they are not required to put forth any\nevidence or proof unless they are claiming a) an alibi or b) pleading an affirmative defense.\nIn those two instances, they do have the burden of proving those, but generally only by a\npreponderance of the evidence Otherwise, they can say and do nothing during the course\nof the entire trial.\nHowever, what typically happens is that while they do not try to prove anything, they will\nstill make efforts to persuade the jury by making effective use of cross-examination of the\nPeople\'s witnesses, most often to try to demonstrate that the People have not met their\nburden to prove all elements beyond a reasonable doubt. If the defendant does decide to\nput proof before the jury, the defendant can choose to take the stand (although the 5th\nAmendment provides that he cannot be required to do so), present his own witnesses and\nprovide his own evidence.\ne. REBUTTAL:\nAfter the defense case is completed, the district attorney may then seek to offer evidence to\nrefute what the defense has presented. This is called rebuttal. It is a response to the defense\xe2\x80\x99s\nevidence. After the district attorney is done with presenting its rebuttal evidence, the defense\nmay then seek to offer evidence to rebut the district attorneys\xe2\x80\x99 rebuttal.\nf. SUMMATION: (CPL \xc2\xa7 260.30(8)(9))\nAt the end of a trial, after all the presentation of evidence and examination of witnesses by\nboth the prosecution and the defense is done, the parties will tell the court that they rest. In\nother words, they are done presenting their side of the case. The next step in the process is\ncalled summation. This is where both attorneys get to summarize the evidence and their\ninterpretation of the case to the jury in an attempt to persuade them. The defense counsel goes\nfirst, and the District Attorney goes last. Their summations are not evidence, and they are not\nallowed to summarize about or add information that was not presented as evidence or\ntestimony during the trial. Neither the defense nor the prosecution is required to give a\nsummation. However, it would be rare that they would not in a jury trial.\ng. JURY CHARGE:\nAfter summations are completed, the judge delivers instructions to the jury about what law to\napply to the evidence and testimony presented during the trial. This is called charging the jury\nor a jury charge. Judges are provided model jury instructions by the New York Unified Court\nSystem for all NYS penal law crimes. These model jury instructions will set out definitions of\nterms like what is reasonable doubt or what is a weapon. These model jury instructions also\nset out the required elements of each criminal charge that the district attorney was required to\nprove. Judges will typically read these instructions verbatim to the jury. The use of model jury\ninstructions by judges throughout the state creates uniformity and fairness in the criminal\njustice court system. A charge to a jury in Albany will therefore be the same charge given to a\n\n148\n\n\x0cjury in Brooklyn. In law, words matter so even a slight deviation in defining certain legal terms\nbetween judges can have an impact on a jury verdict.\nh. DELIBERATION:\nAfter the jury has been charged by the judge, they begin what is called deliberations. This is\nwhere the jury will now review and evaluate the evidence presented to them during the trial,\nand determine whether the district attorney has proven the guilt of the defendant based on this\nevidence and the law to be applied beyond a reasonable doubt.\nTypically, these deliberations take place in a private jury room. Deliberations can go on as long\nas required to reach a verdict. Juries are seldom sequestered. Jurors typically go home at the\nend of each day of deliberation and return the next day.\n\ni. VERDICT:\nCriminal cases require a unanimous vote by the jury. If even one juror holds out and will not\nvote with the other jurors either to a guilty verdict or not guilty verdict, the jury is then called\na \xe2\x80\x9chung jury.\xe2\x80\x9d At this point the judge may declare a mistrial. The jury is then released. The\ndistrict attorney will then have to decide on whether to proceed with a retrial or not proceed\nany further with these charges.\nIf the defendant is found not guilty by a unanimous jury, the defendant will be released\nimmediately. The defendant cannot be charged again for these same crimes. A verdict of not\nguilty is not the same as being innocent. While the defendant may be innocent, the jury verdict\nof not guilty is declaring that the district attorney did not prove its case beyond a reasonable\ndoubt.\nIf the defendant is found guilty of a felony by a unanimous jury, the case will be adjourned for\nsentencing. The judge will set a date for pre-sentence proceedings and sentencing. The crime\nthe defendant is now guilty of will determine whether the defendant will be remanded\nimmediately into custody at the local jail or be released pending the sentencing date. Under\ncertain circumstances, where a pre-sentence investigation is not required, the judge may\nsentence the defendant immediately after the verdict.\nSUMMARY OF A JURY TRIAL PROCEEDING PURSUANT TO CPL \xc2\xa7 260.30:\nA. Jury Selection: The jury must be selected and sworn.\nB. Preliminary Instructions: The court must deliver preliminary instructions to the jury.\nC. Opening Statements: The people must deliver an opening address to the jury.\nD. Opening Statements: The defendant may deliver an opening address to the jury.\nE. Presentation of Evidence: The people must offer evidence in support of the indictment.\nF. Presentation of Evidence: The defendant may offer evidence in his defense.\nG. Rebuttal: The people may offer evidence in rebuttal of the defense evidence\nH. Rebuttal: The defendant may then offer evidence in rebuttal of the people\'s rebuttal\nevidence.\n\n149\n\n\x0cI. Summation: At the conclusion of the evidence, the defendant may deliver a summation to\nthe jury.\nJ. Summation: The people may then deliver a summation to the jury.\nK. Jury Charge: The court must then deliver a charge to the jury.\nL. Deliberation: The jury must then retire to deliberate.\nM. Verdict: The jury, if possible, may render a verdict.\n9. POST-TRIAL MOTIONS AND PROCEEDINGS:\nAfter the jury verdict, if the defendant is found guilty, the defense will typically make a motion to\nhave the verdict set aside by the judge. If the judge does set aside the verdict, some or all of the\ncharges against the defendant can be dismissed or a new trial ordered.\nIf the defendant is found guilty and has been convicted of a previous felony in the last ten years,\nthe court will initiate proceedings to determine whether the defendant is a predicate or violent\npredicate felony offender. A finding that the defendant is a predicate or violent predicate felony\noffender may extend the amount of incarceration time of the defendant at sentencing.\n10. SENTENCING:\nJudges have several options for the sentencing of a defendant after conviction. The following are\nsome common sentencing dispositions. They are often used in combination. For example, a\ndefendant may be fined and sentenced to probation with a conditional discharge. The New York\nPenal Law allows for ten possible sentencing dispositions of a defendant.\na) Unconditional Discharge: The judge sentences the defendant and the defendant\xe2\x80\x99s\nrelease \xe2\x80\x94 has no conditions attached to it.\nb) Conditional Discharge: A defendant is sentenced and released with certain conditions\nattached to the release. If the conditions are not met, the defendant can be re-sentenced.\nc) Fine: A specific amount to be paid by the defendant. The maximum amount to be paid\nis usually set by statute. In some circumstances, the defendant is given the option of\npaying a fine or spending a certain amount of time incarcerated if they cannot or choose\nto not pay the fine. NOTE: A Fine is a state-imposed fee and is NOT designed to assist\nthe victim. See below for Restitution which seeks to help victims recover for\nexpenses/injuries.\nd) Conditional Discharge plus a Fine: The defendant is sentenced to pay a fine in\nconjunction with the conditional discharge.\ne) Probation: Not to be confused with parole, (which is the early release from prison after\nincarceration) probation is generally an alternative to incarceration. A defendant is\nsentenced to probation for a certain length of time in which they will be under the\nsupervision of the Department of Probation. Probation can be used in combination with\nother sentencing options such as a fine and a conditional discharge.\nf) A Fine plus Probation: A defendant is sentenced to pay a fine in conjunction with\nprobation.\ng) Incarceration: The defendant is sentenced to a certain amount of time in either jail or\nprison by the judge. The amount of time is set by statute.\nh) Incarceration plus a Fine: The defendant is sentenced to a certain amount of\nimprisonment time in conjunction with paying a fine.\n\n150\n\n\x0ci) Incarceration plus Probation: A short sentence of incarceration is combined with\nprobation. The defendant is sentenced to six months or less for a felony, or sixty days\nor less for a misdemeanor, and then released to probation. This is called a split sentence.\nj) Incarceration plus a Conditional Discharge: A short sentence of sixty days or less\nof imprisonment in conjunction with a conditional discharge.\nVictim Impact Statement: NYS law allows victims or their families to address the court\nregarding the impact that the crime committed by the defendant has on them. These impact\nstatements can be in writing and submitted or made in open court, both before the judge\nsentences the defendant.\nRestitution: The law now allows a judge to order direct restitution to be paid to the victim\nby the defendant in all sentencing dispositions. Restitution represents the victim\xe2\x80\x99s actual\nloss resulting from the crime such as medical expenses and damages to the victim\xe2\x80\x99s\nproperty.\nDeath Penalty: New York does not have the death penalty as a sentencing option. This is\nbecause the NY Court of Appeals has ruled the NY death penalty statute unconstitutional.\n(People v. LaValle, 3 N.Y.3d 88 (2004))\nDeterminate Sentence: Based on the crime, a defendant is convicted of a judge may\nimpose a determinate sentence. This means the defendant is sentenced for a fixed length of\ntime such as seven years. It may include post-release supervision by a parole officer.\nIndeterminate Sentence: Based on the crime, the defendant is convicted of a judge may\nimpose an indeterminate sentence. The means the defendant is sentenced to a minimum\nmaximum sentence like seven to ten years. The behavior of the defendant while imprisoned\nwill determine how much time the defendant actually serves.\nConcurrent Sentence: When a person is convicted of more than one offense, a judge may\norder the sentences to run concurrently. This means the sentences run simultaneously.\nConsecutive Sentence: When a person is convicted of more than one offense, a judge may\norder the sentences run consecutively. This means the sentences run one after the other.\nJudges may order a combination of concurrent and consecutive sentences.\nIntermittent Sentencing: Pursuant to Penal Law Article 85, a judge may issue a sentence\nof intermittent imprisonment, which is a revocable sentence of imprisonment served on\ncertain days or during certain periods of days, or both, specified by the court as part of the\nsentence. The court may impose an intermittent imprisonment sentence in any case where:\n(a) The court is imposing sentence, upon a person other than a second or persistent\nfelony offender, for a class D or class E felony or for any offense that is not a felony; and\n(b) The court is not imposing any other sentence of imprisonment upon the\ndefendant at the same time; and\n(c) The defendant is not under any other sentence of imprisonment with a term in\nexcess of fifteen days imposed by any other court.\n151\n\n\x0cNon-Predicate Felony Offender: This means a person has not been convicted of another\nfelony in the previous ten years. The minimum sentence may be one-third of the maximum.\nPredicate Felony Offender: This means a person has been convicted of another nonviolent felony besides the current felony in the previous ten years. The minimum sentence\nmust be at least one-half of the maximum.\nViolent Predicate Felony Offender: This means a person has been convicted of another\nfelony in the previous ten years, and that both convictions were for violent felonies. Violent\nfelonies are specifically defined in the Penal Law. The minimum sentence must be at least\none-half the maximum. The minimum sentence for a violent predicate felon will be longer\nthan that of a predicate felon, who in turn, will have longer minimum sentence than a nonpredicate felon.\nPersistent Felony Offender: This means a person has been convicted of at least two\nprevious felonies. The designation of a persistent felony offender is discretionary, not\nmandatory. After a hearing on the issue by the court, a defendant may be categorized as a\npersistent felony offender if the court "is of the opinion that the history and characteristics\nof the defendant and the nature and circumstances of his criminal conduct indicate that\nextended incarceration and life-time supervision will best serve the public interest." Penal\nLaw \xc2\xa7 70.10(2). This may include life-imprisonment.\nPersistent Violent Felony Offender: This means a person has been convicted of at least\ntwo previous violent felonies. After a hearing on the issue by the court, if the court\ndetermines that a person should be categorized as a persistent violent felony offender, the\ncourt must impose an indeterminate term of imprisonment with a maximum term of life.\nParole: Parole is often confused by the general public with probation. They are very\ndifferent. As discussed above, probation is a sentence that is lieu of incarceration. Parole\nis the early release of a person who is incarcerated in the state prison system. Parole is\noperated by the state\xe2\x80\x99s Parole Board. It allows for felony offenders in state prisons to be\nreturned with certain conditions to the community under the supervision of a parole officer.\nJenna\xe2\x80\x99s Law: Passed in 1998, Jenna\xe2\x80\x99s Law requires a determinate sentence for violent\nfelony offenses. It also eliminates discretionary parole for a first-time violent felony\noffender and requires a period of post release supervision following said release. It also\nallows a victim to demand notification of the escape, absconding, discharge, parole,\nconditional release, or release to post-release supervision of their offender.\nThe New York State DNA Databank Law: The NYS DNA Databank was established in\n1994. Under the law in NYS, a person convicted of a felony or misdemeanor must submit\na DNA sample to the DNA Databank. The law does not apply to children involved in a\nFamily Court matter, to youthful offenders, or to first-time fifth-degree marijuana\npossession offenders.\n\n152\n\n\x0cNew York State Sex Offender Registry: In 1996, the New York State Sex Offender\nRegistration Act (SORA) went into effect. All fifty states have a sexual offender\nregistration. SORA is a classification not a sentence.\nThere are two components to SORA: Registration by the sexual offender with local law\nenforcement, and community notification that a sexual offender is residing or working in\nthe community. The level of community notification is based on the classification level of\nthe sexual offender. There are three sexual offender classification levels based on the\nlikelihood that the perpetrator will commit the offense again. Level 1 offenders are\nconsidered low risk. Level 2 offenders are considered a moderate risk, and Level 3\noffenders are considered a high risk for recidivism.\n11. BENCH TRIAL:\nA bench trial has all the characteristics of a jury trial without the jury. Without a jury present, many\nof the steps of a trial necessitated by the presence of a jury are no longer necessary and thereby\neliminated such as voir dire and a jury charge. Often, opening statements and summations are also\nnot necessary and can be eliminated at the judge\xe2\x80\x99s discretion. All violation trials are bench trials.\nThis is because violations are technically not considered crimes. Since a defendant has the\nconstitutional right to a jury trial in all misdemeanor and felony trials, in those instances, only the\ndefendant can choose to waive that right and request a bench trial. The defendant cannot waive a\njury trial in the case of first degree murder. CPL \xc2\xa7 320.10(1)\n12. APPEAL:\nEvery person convicted of a crime has a right to an appeal. If a person wishes to appeal their\nconviction, they must file a notice of appeal within thirty days of sentencing. Once this is done,\nthe appellate attorney will request a transcript of the trial that will be submitted to the appellate\ncourt, along with the appellate attorney\xe2\x80\x99s written brief which sets out the legal grounds for the\nappeal. The district attorney cannot appeal an acquittal. This would be considered double jeopardy,\nwhich is not allowed under either the N.Y. or U.S. Constitutions.\nThere are three possible outcomes of an appeal. The appellate court could affirm, and thereby\nuphold, the lower court decision. The appellate court could reverse the lower court decision. If this\nhappens, the appellate court could dismiss the case, vacate a guilty plea, or remand for a new trial.\nThe third option is that the appellate court could modify the lower court decision in some manner\nand may send it back to the trial court for a hearing on a specific issue or matter of the case.\nAppellate courts do not revisit the facts of a case. They take those as presented to them. They\nreview whether the correct law was applied to the case, or was it applied correctly. They can also\nreview whether there was due process, or if other constitutional protections were not adhered to.\nRegarding an appeal of the sentence, they appellate court can review whether the sentence is\ninvalid as a matter of law or whether it is too harsh.\nIf a defendant is not satisfied with the appellate court\xe2\x80\x99s decision, the defendant can appeal to the\nCourt of Appeals. Whether that court will hear an appeal is at their discretion.\nPLEA BARGAINING:\n\n153\n\n\x0cPlea bargaining is a negotiated disposition of a case between the district attorney and the defendant\nwith the approval of the court. It usually involves the reduction of a charge and sentence, in\nexchange for a guilty plea. It can occur anytime in the criminal case process before sentencing,\neven before an arraignment. The vast majority of defendants will accept a plea bargain, and\ntherefore plead guilty without a trial. Only a small percentage of criminal cases ever make it to\ntrial. A guilty plea that is a result of a plea bargain is the same as being found guilty after a trial. It\nis estimated that around ninety percent (or higher) of those charged with a crime will accept a plea\nbargain.\nSo, why is plea bargaining so prevalent? There are several reasons for this. First, the sheer volume\nof those being arrested and charged with a crime is overwhelming. The current state and federal\ncourt systems do not have the capacity to handle a trial for every arrest and charge made. Plea\nbargaining is therefore an administrative necessity. Another important reason is that plea\nbargaining gives all the parties certainty in the case\xe2\x80\x99s disposition. Typically, the district attorney\nwill get a guaranteed conviction and the defendant will get to plea to reduced charge with a lower\nnegotiated sentence.\nWhat if the district attorney has a decent case, but there are weaknesses in the evidence that can\nbe exploited by the defense? Does the district attorney want to take the chance that a case could\nbe dismissed because of this? Or, perhaps the district attorney is more interested in convicting a\nmore serious criminal defendant and needs the testimony and/or cooperation of another defendant\nto do so. In both of these instances, offering a plea bargain to a defendant makes sense.\nA defendant, even an innocent one, may feel that accepting a plea bargain makes more sense for\nthem than taking their chances with a jury or judge. It is not unusual for a sentence after a trial to\nbe harsher than one offered in a plea bargain. It may also be less time consuming and expensive to\ntake a plea than go all the way to trial.\n\nReferences:\nChampagne, D. M. (2010, October 21). Persistent felony law stays. Retrieved July 26, 2018,\nfrom https://nydailyrecord.com/2010/10/20/persistent-felony-law-stays/\nCriteria for Felony Sentencing Category. (n.d.). Retrieved July 26, 2018, from\nhttps://crimetime.nypti.org/Criteria.aspx\nDivision of Criminal Justice Services. (n.d.). Retrieved July 26, 2018, from\nhttp://www.criminaljustice.ny.gov/forensic/dnabrochure.htm\nDivision of Criminal Justice Services. (n.d.). Retrieved July 26, 2018, from\nhttp://www.criminaljustice.ny.gov/forensic/dnaoffenses.htm\nDivision of Criminal Justice Services. (n.d.). Retrieved July 26, 2018, from\nhttp://criminaljustice.ny.gov/pio/jenna.htm\n\n154\n\n\x0cHow Courts Work. (n.d.). Retrieved July 26, 2018, from\nhttps://www.americanbar.org/groups/public_education/resources/law_related_education_networ\nk/how_courts_work/pleabargaining.html\nJustia Law. (n.d.). Retrieved July 26, 2018, from https://law.justia.com/\nNew York Consolidated Laws, Penal Law - PEN \xc2\xa7 70.10. (n.d.). Retrieved July 26, 2018, from\nhttps://codes.findlaw.com/ny/penal-law/pen-sect-70-10.html\nNew York Criminal Laws. (n.d.). Retrieved July 26, 2018, from\nhttps://statelaws.findlaw.com/new-york-law/new-york-criminal-laws.html\nNew York State. (n.d.). Basic Steps in a Criminal Case. Retrieved July 26, 2018, from\nhttps://www.nycourts.gov/courthelp/Criminal/caseBasicsCriminal.shtml\nNew York State. (n.d.). Preliminary Hearing and Grand Jury. Retrieved July 26, 2018, from\nhttps://www.nycourts.gov/courthelp/Criminal/grandJury.shtml\nNew York State. (n.d.). Sex Offender Registry. Retrieved July 26, 2018, from\nhttps://www.nycourts.gov/courthelp/Criminal/sexOffenderRegistry.shtml\nNew York State. (n.d.). Sentencing Basics. Retrieved July 26, 2018, from\nhttps://www.nycourts.gov/courthelp/Criminal/sentencingBasics.shtml\nNew York State. (n.d.). CJI2d[NY] PENAL LAW OFFENSES. Retrieved July 26, 2018, from\nhttp://www.nycourts.gov/judges/cji/2-PenalLaw/cji3.shtml\nNew York State. (n.d.). Homepage. Retrieved July 26, 2018, from\nhttp://www.nycourts.gov/judges/cji/index.shtml\nNew York State. (n.d.). Pre-trial. Retrieved July 26, 2018, from\nhttps://www.nycourts.gov/courthelp/Criminal/pretrial.shtml\nNew York State. (n.d.). General Information. Retrieved July 26, 2018, from\nhttp://www.nyjuror.gov/juryQandA.shtml\nNew York State. (n.d.). General Information. Retrieved July 26, 2018, from\nhttp://www.nyjuror.gov/GI.shtml\nNew York State Division of Criminal Justice Services. (n.d.). Retrieved July 26, 2018, from\nhttp://www.criminaljustice.ny.gov/\nNew York State Law. (n.d.). Retrieved July 26, 2018, from http://ypdcrime.com/penal.law/\nNew York State Law. (n.d.). Retrieved July 26, 2018, from\nhttp://ypdcrime.com/penal.law/felony_sentences.htm\n155\n\n\x0cNY Laws. (n.d.). Retrieved July 26, 2018, from http://ypdcrime.com/cpl/article255.htm\nOffice of Mental Health. (n.d.). Retrieved July 26, 2018, from\nhttps://www.omh.ny.gov/omhweb/forensic/manual/html/chapter1.htm\nPogue, D. L., Clifford, E., & Schwartz, A. L. (2009). Understanding New York Law, 2013-14.\nRochester, NY: Upstate Legal Publishers\nThe Fund for Modern Courts. (n.d.). From Arrest to Appeal: A Guide to Criminal Cases in the\nNew York State Courts. Retrieved July 26, 2018, from\nhttps://www.reentry.net/ny/library/attachment.79819\nWalsh, D. (2017, May 03). On Plea Bargaining, the Daily Bread of American Criminal Courts.\nRetrieved July 26, 2018, from https://www.theatlantic.com/politics/archive/2017/05/pleabargaining-courts-prosecutors/524112/\nWelcome to LII. (n.d.). Retrieved July 26, 2018, from https://www.law.cornell.edu/\nYour New York Criminal Case: The Basics. (n.d.). Retrieved July 26, 2018, from\nhttps://statelaws.findlaw.com/new-york-law/your-new-york-criminal-case-the-basics.html\n\n156\n\n\x0cCHAPTER 6\nTRAFFIC STOPS & DWI\nINTRODUCTION\nTo legally pull over a vehicle in NYS, the police need probable cause that there is a violation of\nthe Vehicle and Traffic law, or reasonable suspicion that the driver or occupants of the vehicle\nhave committed, are committing, or are about to commit a crime. The U.S. Supreme Court in\nWhren v. United States, 517 US 806 (1996) held:\nAn automobile stop is thus subject to the constitutional imperative that it not be\nunreasonable under the circumstances. As a general matter, the decision to stop\nan automobile is reasonable where the police have probable cause to believe that\na traffic violation has occurred.\nThe New York Court of Appeals in People v. Robinson, 97 NY2d 341 (2001) adopted the ruling\nin Whren holding:\nWe hold that where a police officer has probable cause to believe that the driver\nof an automobile has committed a traffic violation, a stop does not violate article\nI, \xc2\xa7 12 of the New York State Constitution. In making that determination of\nprobable cause, neither the primary motivation of the officer nor a determination\nof what a reasonable traffic officer would have done under the circumstances is\nrelevant.\nThe Court of Appeals went on to say:\nWe noted that \xe2\x80\x9cpolice stops of automobiles in this State are legal only pursuant to\nroutine, nonpretextual traffic checks to enforce traffic regulations or when there\nexists at least a reasonable suspicion that the driver or occupants of the vehicle\nhave committed, are committing, or are about to commit a crime\xe2\x80\x9d (id., at 753).\nHowever, we explained what we meant by pretextual when we further noted that\n\xe2\x80\x9cthere were no objective safeguards circumscribing the exercise of police\ndiscretion\xe2\x80\x9d and that if such stops \xe2\x80\x9cwere permissible and motorists could in fact be\npulled over at an individual police officer\xe2\x80\x99s discretion based upon the mere right to\nrequest information, a pandora\xe2\x80\x99s box of pretextual police stops would be opened\xe2\x80\x9d\n(id., at 758, 759). Central to Spencer\xe2\x80\x98s holding was the absence of an objective\nstandard for stopping a vehicle. Thus, a police officer could contrive a reason to\nstop a vehicle merely to make an inquiry. However, an objective standard is present\nhere\xe2\x80\x93the Vehicle and Traffic Law.\n\n157\n\n\x0cSTATE OF NEW YORK COURT OF APPEAL People v. Robinson\n97 NY2d 341 (2001)\n(Case Syllabus edited by the Author)\nOPINION OF THE COURT\nThe issue here is whether a police officer who has probable cause to believe a driver has committed\na traffic infraction violates article I, \xc2\xa7 12 of the New York State Constitution when the officer,\nwhose primary motivation is to conduct another investigation, stops the vehicle. We conclude\nthat there is no violation, and we adopt Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135\nL.Ed.2d 89 as a matter of state law.\nI\nPeople v. Robinson\nOn November 22, 1993, New York City police officers in the Street Crime Unit, Mobile Taxi\nHomicide Task Force were on night patrol in a marked police car in the Bronx. Their main\nassignment was to follow taxicabs to make sure that no robberies occurred. After observing a car\nspeed through a red light, the police activated their high intensity lights and pulled over what they\nsuspected was a livery cab. After stopping the cab, one officer observed a passenger, the defendant,\nlook back several times. The officers testified that they had no intention of giving the driver a\nsummons but wanted to talk to him about safety tips. The officers approached the vehicle with\ntheir flashlights turned on and their guns holstered. One of the officers shined his flashlight into\nthe back of the vehicle, where defendant was seated, and noticed that defendant was wearing a\nbulletproof vest. After the officer ordered defendant out of the taxicab, he observed a gun on the\nfloor where defendant had been seated. Defendant was arrested and charged with criminal\npossession of a weapon and unlawfully wearing a bulletproof vest. Defendant moved to suppress\nthe vest and gun, arguing that the officers used a traffic infraction as a pretext to search the\noccupant of the taxicab. The court denied the motion, and defendant was convicted of both charges.\nHe was sentenced as a persistent violent felony offender to eight years to life on the weapons\ncharge and 1 1/2 to 3 years on the other charge.\nIn affirming, the Appellate Division applied the Whren rationale (271 A.D.2d 17, 711 N.Y.S.2d\n384 [2000]). We affirm the unanimous order of the Appellate Division.\nPeople v. Reynolds\nOn March 6, 1999, shortly after midnight, a police officer, on routine motor patrol in the City of\nRochester, saw a man he knew to be a prostitute enter defendant\'s truck. The officer followed the\ntruck and ran a computer check on the license plate. Upon learning that the vehicle\'s registration\nhad expired two months earlier, the officer stopped the vehicle.\n158\n\n\x0cThe resulting investigation did not lead to any charges involving prostitution. Nevertheless,\nbecause the driver\'s eyes were bloodshot, his speech slurred and there was a strong odor of alcohol,\npolice performed various field sobriety tests, with defendant failing most. Defendant was placed\nunder arrest for driving while intoxicated. At the police station, tests indicated that defendant\'s\nblood alcohol level was .20%, double the legal limit of .10% (see, Vehicle and Traffic Law \xc2\xa7\n1192[2]).\nDefendant was charged with driving while intoxicated, an unclassified misdemeanor, and\noperating an unregistered motor vehicle, a traffic infraction. Defendant\'s motion to suppress was\ngranted by the Rochester City Court which dismissed all charges. County Court affirmed the\ndismissal, holding that the traffic violation was merely a pretext and the officer\'s primary\nmotivation was to investigate prostitution. We reverse.\nPeople v. Glenn\nOn November 7, 1997, plainclothes police officers were on street crime patrol in an unmarked car\nin Manhattan. They observed a livery cab make a right-hand turn without signaling. An officer\nnoticed someone sitting in the back seat lean forward. The police stopped the vehicle to investigate\nwhether or not a robbery was in progress. A police officer subsequently found cocaine on the rear\nseat and, after he arrested defendant, found additional drugs on his person. Defendant was\ncharged with criminal possession of a controlled substance in the third degree and criminally using\ndrug paraphernalia in the second degree. He contended that the drugs should be suppressed,\nasserting that the traffic infraction was a pretext to investigate a robbery. After his motion to\nsuppress was denied, he pleaded guilty to one count of criminal possession of a controlled\nsubstance and was sentenced, as a second felony offender, to 4 1/2 to 9 years in prison. Relying\non Whren, the Appellate Division unanimously affirmed the conviction (279 A.D.2d 422, 723\nN.Y.S.2d 425 [2001]). We affirm the order of the Appellate Division.\nII\nThe Supreme Court, in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89\n[1996], unanimously held that where a police officer has probable cause to detain a person\ntemporarily for a traffic violation, that seizure does not violate the Fourth Amendment to the\nUnited States Constitution even though the underlying reason for the stop might have been to\ninvestigate some other matter.\nIn Whren, officers patrolling a known drug area of the District of Columbia became suspicious\nwhen several young persons seated in a truck with temporary license plates remained at a stop sign\nfor an unusual period of time, and the driver was looking down into the lap of the passenger seated\non his right. After the car made a right turn without signaling, the police stopped it, assertedly to\nwarn the driver of traffic violations, and saw two plastic bags of what appeared to be crack cocaine\nin Whren\'s hands.\nAfter arresting the occupants, the police found several quantities of drugs in the car. The petitioners\nwere charged with violating federal drug laws. The petitioners moved to suppress the drugs,\n159\n\n\x0carguing that the stop was not based upon probable cause or even reasonable suspicion that they\nwere engaged in illegal drug activity and that the police officer\'s assertion that he approached the\ncar in order to give a warning was pretextual. The District Court denied suppression, and the Court\nof Appeals for the District of Columbia Circuit affirmed (53 F.3d 371 [1995]).\nThe Supreme Court held that the Fourth Amendment had not been violated because \xe2\x80\x9c[a]s a general\nmatter, the decision to stop an automobile is reasonable where the police have probable cause to\nbelieve that a traffic violation has occurred\xe2\x80\x9d (Whren, supra, 517 U.S., at 810, 116 S.Ct. 1769). The\nstop of the truck was based upon probable cause that the petitioners had violated provisions of the\nDistrict of Columbia traffic code. The Court rejected any effort to tie the legality of the officers\'\nconduct to their primary motivation or purpose in making the stop, deeming irrelevant whether a\nreasonable traffic police officer would have made the stop. According to the Court, \xe2\x80\x9cSubjective\nintentions play no role in ordinary, probable-cause Fourth Amendment analysis\xe2\x80\x9d (id., at 813, 116\nS.Ct. 1769). Thus, the \xe2\x80\x9cFourth Amendment\'s concern with \xe2\x80\x98reasonableness\' allows certain actions\nto be taken in certain circumstances, whatever the subjective intent\xe2\x80\x9d (id., at 814, 116 S.Ct. 1769).\nMore than 40 states and the District of Columbia have adopted the objective standard approved by\nWhren or cited it with approval (see, Appendix).1\nIII\nIn each of the cases before us, defendant argues that the stop was pretextual and in violation of\nNew York State Constitution, article I, \xc2\xa7 12. By arguing that the stops were pretextual, defendants\nclaim that although probable cause existed warranting a stop of the vehicle for a valid traffic\ninfraction, the officer\'s primary motivation was to conduct some other investigation.\nWe hold that where a police officer has probable cause to believe that the driver of an automobile\nhas committed a traffic violation, a stop does not violate article I, \xc2\xa7 12 of the New York State\nConstitution. In making that determination of probable cause, neither the primary motivation of\nthe officer nor a determination of what a reasonable traffic officer would have done under the\ncircumstances is relevant.\nWe have observed that because the search and seizure language of the Fourth Amendment and of\narticle I, \xc2\xa7 12 is identical, they generally confer similar rights (see, People v. Harris, 77 N.Y.2d\n434, 437, 568 N.Y.S.2d 702, 570 N.E.2d 1051 [1991]; People v. P.J. Video, 68 N.Y.2d 296, 304,\n508 N.Y.S.2d 907, 501 N.E.2d 556 [1986] ).2 Nevertheless, this Court has not hesitated to expand\nthe rights of New York citizens beyond those required by the Federal Constitution when a\nlongstanding New York interest was involved (see, e.g., People v. Scott, 79 N.Y.2d 474, 583\nN.Y.S.2d 920, 593 N.E.2d 1328 [1992]; People v. Keta, 79 N.Y.2d 474, 583 N.Y.S.2d 920, 593\nN.E.2d 1328 [1992]; People v. Griminger, 71 N.Y.2d 635, 529 N.Y.S.2d 55, 524 N.E.2d 409\n[1988]; People v. Bigelow, 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ).\nThis Court has always evaluated the validity of a traffic stop based on probable cause that a driver\nhas committed a traffic violation, without regard to the primary motivation of the police officer or\nan assessment that a reasonable traffic officer would have made the same stop. Where the police\nhave stopped a vehicle for a valid reason, we have upheld police conduct without regard to the\n160\n\n\x0creason for the stop (People v. David L., 81 A.D.2d 893, 439 N.Y.S.2d 152, revd. on dissent below\n56 N.Y.2d 698, 451 N.Y.S.2d 722, 436 N.E.2d 1324 [1982], cert. denied 459 U.S. 866, 103 S.Ct.\n146, 74 L.Ed.2d 123).\nThis Court has never held that a pretextual stop, as opposed to subsequent police conduct, was\nviolative of article I, \xc2\xa7 12. The dissent does not disagree (dissenting opn. at 367-368, 741 N.Y.S.2d\nat 164-65, 767 N.E.2d at 655-56). Although the Appellate Divisions have, on occasion, examined\nthe primary motivation of a police officer in evaluating a traffic stop, all seven of the Judges on\nthis Court acknowledge the \xe2\x80\x9cdifficulty, if not futility, of basing the constitutional validity of\nsearches or seizures on judicial determinations of the subjective motivation of police officers\xe2\x80\x9d\n(dissenting opn. at 371, 741 N.Y.S.2d at 167, 767 N.E.2d at 658). Thus, we are unanimous in our\nview that the primary motivation test is not, and should not be, part of our State constitutional\njurisprudence.\nDefendants, however, point to several of our cases-most notably People v. Spencer, 84 N.Y.2d\n749, 622 N.Y.S.2d 483, 646 N.E.2d 785 [1995]-and contend that we have previously indicated our\ndisapproval of pretextual police conduct. Defendants\' reliance on People v. Spencer is misplaced.\nThere, we held that the stop of the vehicle merely to request information from the driver concerning\nthe whereabouts of a criminal suspect was an unreasonable seizure in violation of the Fourth\nAmendment. In that case, the defendant had not committed a traffic violation.\nWe noted that \xe2\x80\x9cpolice stops of automobiles in this State are legal only pursuant to routine,\nnonpretextual traffic checks to enforce traffic regulations or when there exists at least a reasonable\nsuspicion that the driver or occupants of the vehicle have committed, are committing, or are about\nto commit a crime\xe2\x80\x9d (id., at 753, 622 N.Y.S.2d 483, 646 N.E.2d 785). However, we explained\nwhat we meant by pretextual when we further noted that \xe2\x80\x9cthere were no objective safeguards\ncircumscribing the exercise of police discretion\xe2\x80\x9d and that if such stops \xe2\x80\x9cwere permissible and\nmotorists could in fact be pulled over at an individual police officer\'s discretion based upon the\nmere right to request information, a pandora\'s box of pretextual police stops would be opened\xe2\x80\x9d\n(id., at 758, 759, 622 N.Y.S.2d 483, 646 N.E.2d 785). Central to Spencer\xe2\x80\x99s holding was the absence\nof an objective standard for stopping a vehicle. Thus, a police officer could contrive a reason to\nstop a vehicle merely to make an inquiry. However, an objective standard is present here-the\nVehicle and Traffic Law.\nMoreover, in none of the cases in which we have extended the rights of New York State defendants\nbeyond those of the Federal Constitution have we questioned a police officer\'s authority to act\nwhen there was probable cause to conclude that a law or regulation has been violated. None of\nthe reasons for extending protections of our Constitution beyond those given by the Federal\nConstitution exist here. In this case, regulating the ability of the police to stop a vehicle when there\nis probable cause to believe that a traffic regulation has been violated does little to expand the\nrights of the accused. Instead it may lead to the harm of innocent citizens. Thus, for example, in\nPeople v. Reynolds, the stop of the automobile led to the arrest of a person driving under the\ninfluence of alcohol.\nThe real concern of those opposing pretextual stops is that police officers will use their authority\nto stop persons on a selective and arbitrary basis. Whren recognized that the answer to such action\n161\n\n\x0cis the Equal Protection Clause of the Constitution. We are not unmindful of studies, some of which\nare cited by defendants and the amici, which show that certain racial and ethnic groups are\ndisproportionately stopped by police officers, and that those stops do not end in the discovery of a\nhigher proportion of contraband than in the cars of other groups. The fact that such disparities exist\nis cause for both vigilance and concern about the protections given by the New York State\nConstitution. Discriminatory law enforcement has no place in our law.\nIndeed, in Brown v. State of New York, 89 N.Y.2d 172, 652 N.Y.S.2d 223, 674 N.E.2d 1129 [1996],\nthis Court recognized that in New York State, a plaintiff has a cause of action for a violation of the\nEqual Protection Clause 4 and the Search and Seizure Clause of the State Constitution. In\nupholding the right of African Americans to sue for alleged violations of their right to equal\nprotection and freedom from unreasonable searches and seizures, when they were detained because\nof their race during a police investigation, this Court stated:\n\xe2\x80\x9cThese sections [art. I, \xc2\xa7\xc2\xa7 11, 12] establish a duty sufficient to support causes of action to secure\nthe liberty interests guaranteed to individuals by the State Constitution independent of any\ncommon-law tort rule. Claimants alleged that the defendant\'s officers and employees deprived\nthem of the right to be free from unlawful police conduct violating the Search and Seizure Clause\nand that they were treated discriminatorily in violation of the State Equal Protection Clause. The\nharm they assert was visited on them was well within the contemplation of the framers when these\nprovisions were enacted for fewer matters have caused greater concern throughout history than\nintrusions on personal liberty arising from the abuse of police power. Manifestly, these sections\nwere designed to prevent such abuses and protect those in claimants\' position. A damage remedy\nin favor of those harmed by police abuses is appropriate and in furtherance of the purpose\nunderlying the sections\xe2\x80\x9d (89 N.Y.2d, at 191).\nThe alternatives to upholding a stop based solely upon reasonable cause to believe a traffic\ninfraction has been committed put unacceptable restraints on law enforcement. This is so whether\nthose restrictions are based upon the primary motivation of an officer or upon what a reasonable\ntraffic police officer would have done under the circumstances. Rather than restrain the police in\nthese instances, the police should be permitted to do what they are sworn to do-uphold the law.\nIn none of the cases cited by defendants has this Court penalized the police for enforcing the law.\nWe should not do so here. To be sure, the story does not end when the police stop a vehicle for a\ntraffic infraction. Our holding in this case addresses only the initial police action upon which the\nvehicular stop was predicated. The scope, duration and intensity of the seizure, as well as any\nsearch made by the police subsequent to that stop, remain subject to the strictures of article I, \xc2\xa7\n12, and judicial review (People v. Troiano, 35 N.Y.2d 476, 363 N.Y.S.2d 943, 323 N.E.2d 183\n[1974]; People v. Marsh, 20 N.Y.2d 98, 281 N.Y.S.2d 789, 228 N.E.2d 783 [1967] ).\n\nIV\n\n162\n\n\x0c\xe2\x80\xa6We are not confounded by the proposition that police officers must exercise their discretion on\na daily basis. Nor are we surprised at the assertion that many New Yorkers often violate some\nprovision of the Vehicle and Traffic Law. But we cannot equate the combination of police officer\ndiscretion and numerous traffic violations as arbitrary police conduct that the Supreme Court in\nDelaware v. Prouse viewed as evil. That conduct violates the Fourth Amendment because it was\n\xe2\x80\x9cstandardless and unconstrained\xe2\x80\x9d (id., at 661, 99 S.Ct. 1391). In the cases before us, however, we\nconfirm a standard that constrains police conduct-probable cause under the Vehicle and Traffic\nLaw and its related regulations that govern the safe use of our highways.\nAccordingly, in People v. Robinson and People v. Glenn, the orders of the Appellate Division\nshould be affirmed. In People v. Reynolds, the order of the Monroe County Court should be\nreversed, defendant\'s motion to suppress denied, the accusatory instruments reinstated, and the\ncase remitted to Rochester City Court for further proceedings in accordance with this opinion.\nThe U.S. Supreme Court held in 2014 that even if an officer is mistaken regarding the law, if that\nmistake is reasonable, the stop is still valid. Whether New York courts will apply this standard is\nyet to be determined.\n\nSUPREME COURT OF THE UNITED STATES: Heien v. North Carolina\n574 U.S. ___ (2014)\nFollowing a suspicious vehicle, Sergeant Matt Darisse noticed that only one of the vehicle\xe2\x80\x99s brake\nlights was working and pulled the driver over. While issuing a warning ticket for the broken brake\nlight, Darisse became suspicious of the actions of the two occupants and their answers to his\nquestions. Petitioner Nicholas Brady Heien, the car\xe2\x80\x99s owner, gave Darisse consent to search the\nvehicle. Darisse found cocaine, and Heien was arrested and charged with attempted trafficking.\nThe trial court denied Heien\xe2\x80\x99s motion to suppress the seized evidence on Fourth Amendment\ngrounds, concluding that the vehicle\xe2\x80\x99s faulty brake light gave Darisse reasonable suspicion to\ninitiate the stop. The North Carolina Court of Appeals reversed, holding that the relevant code\nprovision, which requires that a car be \xe2\x80\x9cequipped with a stop lamp,\xe2\x80\x9d N. C. Gen. Stat. Ann. \xc2\xa720\xe2\x80\x93\n129(g), requires only a single lamp\xe2\x80\x94which Heien\xe2\x80\x99s vehicle had\xe2\x80\x94and therefore the justification\nfor the stop was objectively unreasonable. Reversing in turn, the State Supreme Court held that,\neven assuming no violation of the state law had occurred, Darisse\xe2\x80\x99s mistaken understanding of the\nlaw was reasonable, and thus the stop was valid.\nHeld: Because Darisse\xe2\x80\x99s mistake of law was reasonable, there was reasonable suspicion justifying\nthe stop under the Fourth Amendment.\n(a) The Fourth Amendment requires government officials to act reasonably, not perfectly, and\ngives those officials \xe2\x80\x9cfair leeway for enforcing the law,\xe2\x80\x9d Brinegar v. United States, 338 U. S. 160.\nSearches and seizures based on mistakes of fact may be reasonable. See, e.g., Illinois v. Rodriguez,\n497 U. S. 177 \xe2\x80\x93186. The limiting factor is that \xe2\x80\x9cthe mistakes must be those of reasonable men.\xe2\x80\x9d\nBrinegar, supra, at 176. Mistakes of law are no less compatible with the concept of reasonable\nsuspicion, which arises from an understanding of both the facts and the relevant law. Whether an\nofficer is reasonably mistaken about the one or the other, the result is the same: the facts are outside\n163\n\n\x0cthe scope of the law. And neither the Fourth Amendment\xe2\x80\x99s text nor this Court\xe2\x80\x99s precedents offer\nany reason why that result should not be acceptable when reached by a reasonable mistake of law.\nMore than two centuries ago, this Court held that reasonable mistakes of law, like those of fact,\ncould justify a certificate of probable cause. United States v. Riddle, 5 Cranch 311, 313. That\nholding was reiterated in numerous 19th-century decisions. Although Riddle was not a Fourth\nAmendment case, it explained the concept of probable cause, which this Court has said carried the\nsame \xe2\x80\x9cfixed and well known meaning\xe2\x80\x9d in the Fourth Amendment, Brinegar, supra, at 175, and n.\n14, and no subsequent decision of this Court has undermined that understanding. The contrary\nconclusion would be hard to reconcile with the more recent precedent of Michigan v. DeFillippo,\n443 U. S. 31, where the Court, addressing the validity of an arrest made under a criminal law later\ndeclared unconstitutional, held that the officers\xe2\x80\x99 reasonable assumption that the law was valid gave\nthem \xe2\x80\x9cabundant probable cause\xe2\x80\x9d to make the arrest, id., at 37. Heien attempts to recast DeFillippo\nas a case solely about the exclusionary rule, not the Fourth Amendment itself, but DeFillippo\xe2\x80\x99s\nexpress holding is that the arrest was constitutionally valid because the officers had probable cause.\nSee id., at 40. Heien misplaces his reliance on cases such as Davis v. United States, 564 U. S. ___,\nwhere any consideration of reasonableness was limited to the separate matter of remedy, not\nwhether there was a Fourth Amendment violation in the first place.\nHeien contends that the rationale that permits reasonable errors of fact does not extend to\nreasonable errors of law, arguing that officers in the field deserve a margin of error when making\nfactual assessments on the fly. An officer may, however, also be suddenly confronted with a\nsituation requiring application of an unclear statute. This Court\xe2\x80\x99s holding does not discourage\nofficers from learning the law. Because the Fourth Amendment tolerates only objectively\nreasonable mistakes, cf. Whren v. United States, 517 U. S. 806, an officer can gain no advantage\nthrough poor study. Finally, while the maxim \xe2\x80\x9cIgnorance of the law is no excuse\xe2\x80\x9d correctly implies\nthat the State cannot impose punishment based on a mistake of law, it does not mean a reasonable\nmistake of law cannot justify an investigatory stop.\n(b) There is little difficulty in concluding that Officer Darisse\xe2\x80\x99s error of law was reasonable. The\nNorth Carolina vehicle code that requires \xe2\x80\x9ca stop lamp\xe2\x80\x9d also provides that the lamp \xe2\x80\x9cmay be\nincorporated into a unit with one or more other rear lamps,\xe2\x80\x9d N. C. Gen. Stat. Ann. \xc2\xa720\xe2\x80\x93129(g),\nand that \xe2\x80\x9call originally equipped rear lamps\xe2\x80\x9d must be \xe2\x80\x9cin good working order,\xe2\x80\x9d \xc2\xa720\xe2\x80\x93129(d).\nAlthough the State Court of Appeals held that \xe2\x80\x9crear lamps\xe2\x80\x9d do not include brake lights, the word\n\xe2\x80\x9cother,\xe2\x80\x9d coupled with the lack of state-court precedent interpreting the provision, made it\nobjectively reasonable to think that a faulty brake light constituted a violation.\n367 N. C. 163, 749 S. E. 2d 278, affirmed.\nRoberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, Ginsburg,\nBreyer, Alito, and Kagan, JJ., joined. Kagan, J., filed a concurring opinion, in which Ginsburg, J.,\njoined. Sotomayor, J., filed a dissenting opinion.\nDRIVING WHILE INTOXICATED (DWI) IN NEW YORK: New York has two ways of\nconvicting a driver of driving while intoxicated:\n1. Operating a motor vehicle while having a blood alcohol content (BAC) of .08 percent or\nmore. The blood alcohol content is usually measured through analysis of your breath by a\n164\n\n\x0cbreathalyzer machine, although blood and urine samples can also be used. (V&T Section\n1192)\n2. Operating a motor vehicle while your ability to do so is seriously impaired by intoxication.\nUnder this method, the proof against you is the testimony of witnesses, the arresting officer,\npersons who saw you drive, a bartender who served you alcohol before you drove, etc.\n(V&T Section 1192(3)). This charge is frequently referred to as common law driving while\nintoxicated.\nA lesser-included charge of Driving While Intoxicated is Driving While Ability Impaired, which\nis a violation, not a crime. It requires a BAC between .05 and .07, or other evidence of impairment.\nTHE BREATHALYZER TEST: Driving in New York is a privilege, not a right. This privilege\nis conditioned upon a driver\'s willingness to take a breathalyzer test when asked by the police. This\nis referred to as the implied consent law. Because you are deemed to have consented, a blood test\ncan be taken if you are unconscious, (People v Kates, 53 NY2d 591(1981)). Without a court order,\na driver cannot be forced to take a breathalyzer, but, if you refuse, there are consequences. A\ncourt order can be obtained if you are involved in an accident in which death or serious physical\ninjury occurs [V&T Section 1194(3)(b)(1). If such an order is issued by a judge, your blood will\nbe taken so it can be tested for alcohol content.\n\nSTATE OF NEW YORK COURT OF APPEALS People v Kates\n53 NY2d 591(1981)\n(Case Syllabus edited by the Author)\nWACHTLER, J.\nThe primary question on this appeal is whether a blood alcohol test of a hospitalized driver, who\nwas unconscious or so disoriented that the police were unable to obtain his consent, was made in\nviolation of section 1194 of the Vehicle and Traffic Law. The trial court suppressed the test\nresults holding that the statute requires express consent and that a contrary interpretation would\nviolate the equal protection rights of the unconscious driver. The Appellate Division reversed\nfinding no statutory or constitutional bar to admissibility. The defendant appeals claiming the\ntrial court properly suppressed. He also argues that the prosecutor possesses other evidence of\nintoxication and thus had no right to appeal the suppression order in this case.\nAt approximately 6:00 P.M. on March 3, 1979 a car driven by the defendant collided with another\ncar fatally injuring the woman driving that vehicle. The defendant and his three passengers were\nremoved to nearby hospitals. After examining the accident scene, the police spoke to one of the\ndefendant\'s passengers who appeared to be intoxicated. At approximately 9:00 P.M., the police\nwent to see the defendant who was then in another emergency room being treated for various\ninjuries including lacerations of the head. As the police approached the defendant they detected an\nodor of alcohol, observed that his eyes were bloodshot and watery and concluded that he was\n165\n\n\x0cintoxicated. They also concluded, and it was found as a fact at the hearing, that the defendant was\nso disoriented as to be incapable of giving or refusing consent to a blood test. Thus, unable to\nobtain his consent the police simply asked the attending physical to take a blood sample. This was\ndone without incident and subsequent analysis showed that defendant\'s blood contained .18% by\nweight of alcohol. The defendant was indicted for criminally negligent homicide, driving while\nintoxicated, and related offenses.\nPrior to trial the defendant moved to suppress the blood test results claiming they were obtained\nwithout his consent in violation of section 1194 of the Vehicle and Traffic Law and his\nconstitutional rights under the Fourth Amendment and the equal protection clause of the\nFourteenth Amendment. After a hearing the court found that it was, in fact, impossible for the\npolice to obtain defendant\'s consent because of his condition at the time of the test. Nevertheless,\nthe court concluded that under the statute blood test results are not admissible unless the defendant\n"expressly consented" to the test. The court also agreed with the defendant that if the statute were\nconstrued to dispense with the need to consent in the case of an unconscious driver it would violate\nthe defendant\'s constitutional right of equal protection.\nThe People appealed the suppression order (CPL \xc2\xa7 450.20, subd 8) and certified that the remaining\nproof was not enough to obtain a conviction (CPL \xc2\xa7 450.50, subd 1). The Appellate Division\nreversed, concluding that section 1194 literally read did not require the driver\'s express consent to\na blood test and that its history showed that the Legislature did not intend lack of consent to be a\nbar to the admissibility of blood test results when the driver was unconscious or otherwise\nincapable of giving or refusing consent. The court also found that there was a basis for\ndistinguishing between conscious drivers and unconscious drivers and thus no denial of equal\nprotection. The defendant\'s contention that the suppression order was not appealable because the\nprosecutor had other evidence of intoxication was found to be without merit in view of the\nprosecutor\'s certification that the suppressed evidence was essential to his case. On these points\nwe agree with the Appellate Division.\nInitially it should be noted that taking the blood sample in this case did not involve any violation\nof the defendant\'s constitutional rights under the Fourth or Fifth Amendments. Taking a driver\'s\nblood for alcohol analysis does not call for testimonial compulsion prohibited by the Fifth\nAmendment (Schmerber v California, 384 U.S. 757, 760-765; People v Thomas, 46 N.Y.2d 100).\nNor does it involve an unreasonable search under the Fourth Amendment when there is probable\ncause, exigent circumstances and a reasonable examination procedure (Schmerber v California,\nsupra, pp 768-772). So long as these requirements are met \xe2\x80\x94 and the defendant does not suggest\nthat they were not met in this case \xe2\x80\x94 the test may be performed absent defendant\'s consent and\nindeed over his objection without violating his Fourth Amendment rights (Schmerber v California,\nsupra, p 759).\nThus, the defendant\'s contention that the test made without his consent was illegal, depends solely\nupon his interpretation of section 1194 of the Vehicle and Traffic Law. Subdivision 1 of that statute\nestablishes the general rule that "Any person who operates a motor vehicle in this state shall be\ndeemed to have given his consent" to such a test. Subdivision 2 contains an exception which is\nonly applicable when the driver refuses to consent. It states, "If such person having been placed\nunder arrest or after a breath test indicates the presence of alcohol in his system and having\nthereafter been requested to submit to such chemical test, refuses to submit to such chemical test,\n166\n\n\x0cthe test shall not be given". The statute also provides penalties for the driver who refuses to submit\nafter being advised of the consequences of refusal (see subds 2, 4; People v Thomas, supra, p 108).\nLiterally read the statute was not violated in this case because the defendant had not refused\nconsent. Of course, the result would be different if the Legislature had provided that no test could\nbe given unless the driver expressly consents to it. Under such a statute consent would be a\nprerequisite and the unconscious or incapacitated driver could not be given a blood test because of\nthe impossibility of obtaining his consent. However, subdivision 2 cannot be read as requiring the\ndriver\'s express consent because that would effectively nullify the consent implied in subdivision\n1 or at least make the statute inherently inconsistent. In any event that is not the way the Legislature\nworded the exception and the history of the statute shows that the wording was carefully chosen\nwith this situation in mind. The legislative committee responsible for this statute noted in its report:\n"In the case of an unconscious individual, a chemical test can be administered since he is deemed\nto have given his consent when he used the highway. It is not necessary that a person be given the\nopportunity to revoke his consent. The only reason the opportunity to revoke is given is to\neliminate the need for the use of force by police officers if an individual in a drunken condition\nshould refuse to submit to the test" (Report of Joint Legislative Committee on Motor Vehicle\nProblems, McKinney\'s 1953 Session Laws of NY, pp 1912-1928). Indeed, it would have been odd\nif the Legislature had provided that the blood test and the penalties for refusal designed to remove\ndrunken drivers from the road would become inapplicable when the driver has, by excessive\ndrinking or injuries sustained in a related accident, made himself incapable of consenting or\nrefusing to submit to the test.\nThe distinction drawn between the conscious driver and the unconscious or incapacitated driver\ndoes not offend the equal protection clause. It was reasonable for the Legislature, concerned with\navoiding potentially violent conflicts between the police and drivers arrested for intoxication, to\nprovide that the police must request the driver\'s consent, advise him of the consequences of refusal\nand honor his wishes if he decides to refuse, but to dispense with these requirements when the\ndriver is unconscious or otherwise incapacitated to the point where he poses no threat. Indeed,\nthere is a rational basis for distinguishing between the driver who is capable of making a choice\nand the driver who is unable to do so. Thus, denying the unconscious driver the right to refuse a\nblood test does not violate his right to equal protection.\nAs noted the defendant also contends that the prosecutor had no right to appeal the suppression\norder because the defendant believes that the remaining evidence is sufficient to sustain a\nconviction. The statute provides however, that the prosecutor may appeal not only where the\nremaining proof is legally insufficient but also where he certifies that it is "so weak in its entirety\nthat any reasonable possibility of prosecuting such charge to a conviction has been effectively\ndestroyed" (CPL \xc2\xa7 450.50, subd 1, par [b]). The quoted portion obviously calls for a personal\nevaluation which can only be made by the prosecutor who is a better judge than his opponent or\nan appellate court of his chance of succeeding at trial with the remaining proof. Nor is there any\ngeneral need to check the accuracy of the prosecutor\'s assessment since the statute itself\ndiscourages a prosecutor from overestimating his need for the suppressed evidence. Once he files\nthe certification and takes an appeal, he will not be permitted to change his position and try the\ndefendant on other proof if the suppression order is upheld on appeal (CPL \xc2\xa7 450.50, subd 2;\nMatter of Forte v Supreme Ct. of State of N. Y., 48 N.Y.2d 179). Thus, the prosecutor\'s certification\n167\n\n\x0cis sufficient; he need not expose his case for appellate confirmation of his likelihood of obtaining\na conviction without the suppressed proof.\nAccordingly, the order of the Appellate Division should be affirmed.\nFUCHSBERG, J. (concurring).\nWhile, for the reasons I advanced in my dissent in People v Thomas, (46 N.Y.2d 100, 110-113), I\ndo not depart from my conviction that section 1194 of the Vehicle and Traffic Law runs afoul of\nthe fundamental constitutional bar against testimonial compulsion, I am now constrained to concur\non authority of the majority\'s holding in that case.\nOrder affirmed.\nRAMIFICATIONS OF REFUSING TO TAKE A BREATHALYZER TEST: Whether or not\na person should take the breathalyzer test when asked by the police to do so is not an easy question\nto answer. There may be instances where refusing to take the test is in a person\xe2\x80\x99s best interest.\nHowever, it is important to know what the ramifications are for refusing to do so.\n1. Upon a finding by the Department of Motor Vehicles (DMV) that a defendant did\nindeed refuse to take the breathalyzer test, the defendant\xe2\x80\x99s license to drive will\nautomatically be revoked for a period of one year with a $500.00 fine and 18 months\nand a $750 fine if the defendant has a prior DWI conviction.\n2. At trial, the District Attorney will be allowed to introduce into evidence the fact that\nthe defendant refused to take the test. The defendant\xe2\x80\x99s refusal does not prevent the\ndefendant from being charged and convicted of common law Driving While Intoxicated\nin violation of V&T Section 1192(3).\\\n3. Some District Attorney offices have a policy of not offering plea bargains to\ndefendants that refuse to that the breathalyzer test.\nATTORNEY ADVICE ON SUBMITTING TO A BREATHALYZER TEST: If a suspect\ndriver asks to consult with their attorney, the police must allow the suspect the opportunity to try\nto contact their attorney. However, if the attorney cannot be reached within a reasonable time,\nthe suspect will be required to make the decision on your own (People v Gursey, 22 NY2d 224\n(1968))\n\nSTATE OF NEW YORK\nCOURT OF APPEALS\nPeople v Gursey\n22 NY2d 224 (1968)\n(Case Syllabus edited by the Author)\n\n168\n\n\x0cBREITEL, J.\nThe People appeal from an order of the Appellate Term unanimously reversing a judgment of the\nCriminal Court of the City of New York, New York County, and ordering a new trial. Defendant\nhad been convicted, after trial, of the misdemeanor of driving while intoxicated (Vehicle and\nTraffic Law, \xc2\xa7 1192, subd. 2) and the offense of driving the wrong way on a one-way street. * On\nthe drunken driving charge, he was sentenced to pay a fine of $100 or serve 10 days in jail. The\nlatter conviction was reversed by the Appellate Term because of the trial court\'s failure to suppress\non defendant\'s application the results of a drunkometer test performed after defendant had been\ndenied an opportunity to telephone his lawyer. Since there was sufficient other evidence of\nintoxication, the Appellate Term ordered a new trial.\nThe only issue presented is whether a criminal conviction may rest upon the results of a chemical\ntest performed over the defendant\'s initial objection and after he had been prevented from\ntelephoning his lawyer for legal advice concerning the test, such communication involving no\nsignificant or obstructive delay. Since it is concluded that the test results were secured in violation\nof defendant\'s privilege of access to counsel without occasioning any significant or obstructive\ndelay, the order of the Appellate Term should be affirmed.\nOn the evening of February 7, 1966, one Patrolman Foley, while on radio patrol, stopped\ndefendant\'s automobile traveling eastward in Manhattan on 47th Street, a one-way west street.\nWhile questioning defendant driver, the officer noticed that defendant\'s head was bobbing, his\nspeech was slurred, and his breath betrayed an alcoholic odor. The officer drove defendant to the\nstation house and questioned him there. At a point during the questioning, defendant asked\npermission to call his lawyer and was told, "You will be allowed to make a call to your attorney\nafter I get this information." Significantly, defendant had a particular attorney in mind when he\nrequested permission to call. Although at one-point defendant indicated an intention to claim his\nprivilege against self-incrimination, he nevertheless continued to answer questions and perform\nco-ordination tests, after his request to call his lawyer had been denied. When asked to submit to\na drunkometer or breath analysis test, however, defendant refused, and again asked for permission\nto call his lawyer. Another police officer, the sergeant in charge of the drunkometer test, told\ndefendant, "You have got to take this test." When defendant asked what would happen if he did\nnot submit to the test, the sergeant replied, "If you don\'t take this test, the State will take away your\nlicense." Thereupon, defendant submitted to the test.\nAt trial, a voir dire was held to determine the admissibility of the statements made by defendant\nas well as the results of the physical co-ordination exercises and drunkometer tests. The trial court\nsuppressed the statements and the results of the co-ordination tests, but admitted evidence of the\ndrunkometer readings. The Appellate Term unanimously reversed on the ground that "the denial\nof defendant\'s request to telephone his attorney before he took the test violated his constitutional\nrights".\nIn light of current recognition of the importance of counsel in criminal proceedings affecting\nsignificant legal rights, law enforcement officials may not, without justification, prevent access\nbetween the criminal accused and his lawyer, available in person or by immediate telephone\ncommunication, if such access does not interfere unduly with the matter at hand. This court\n169\n\n\x0crecently noted, in another context, that: "As a matter of fairness, government ought not compel\nindividuals to make binding decisions concerning their legal rights in the enforced absence of\ncounsel" (People v. Ianniello, 21 N.Y.2d 418, 424; see Escobedo v. Illinois, 378 U.S. 478, 486;\nPeople v. Donovan, 13 N.Y.2d 148, 153). In the present case, defendant possessed a number of\nstatutory options which could be asserted only during the transaction at the station house, and\nconcerning which the advice of counsel, if available, was relevant.\nSubdivision 1 of section 1194 of the Vehicle and Traffic Law reads: "1. Any person who operates\na motor vehicle or motorcycle in this state shall be deemed to have given his consent to a chemical\ntest of his breath, blood, urine, or saliva for the purpose of determining the alcoholic * * * content\nof his blood provided that such test is administered at the direction of a police officer having\nreasonable grounds to believe such person to have been driving in an intoxicated condition or,\nwhile his ability to operate such motor vehicle or motorcycle was impaired by the consumption of\nalcohol * * * and in accordance with the rules and regulations established by the police force of\nwhich he is a member. If such person having been placed under arrest and having thereafter been\nrequested to submit to such chemical test refuses to submit to such chemical test, the test shall not\nbe given, but the commissioner shall revoke his license or permit to drive and any non-resident\noperating privilege".\nBy these provisions, defendant had the option to refuse to take the drunkometer test, electing\ninstead to submit to the revocation of his license. In addition, if he elected to take the test, he was\nentitled "to have a physician of his own choosing administer a chemical test in addition to the one\nadministered at the direction of the police officer" (Vehicle and Traffic Law, \xc2\xa7 1194, subd. 4). Of\ncourse, defendant was informed that he would lose his license if he refused to take the policeadministered test. Nevertheless, he wished legal counseling concerning his option and refused to\nsubmit to the test until his several requests to telephone his lawyer were denied. Granting\ndefendant\'s requests would not have substantially interfered with the investigative procedure, since\nthe telephone call would have been concluded in a matter of minutes. At least, the record here does\nnot indicate otherwise. Consequently, the denial of defendant\'s requests for an opportunity to\ntelephone his lawyer must be deemed to have violated his privilege of access to counsel.\nQuite different was the situation in Matter of Story v. Hults, (19 N.Y.2d 936, affd. 27 A.D.2d 745)\nin which, apart from the quite significant fact that only an administrative proceeding was involved,\npetitioner\'s lawyer did not appear at the station house until just before the expiration of the statutory\ntwo-hour period, and in the meantime, petitioner had refused to submit to the test. It is notable,\nhowever, that in the Story case petitioner was permitted to telephone his wife or his lawyer, and\nhe did call his wife, who, evidently, procured the lawyer, but too late.\nThe privilege of consulting with counsel concerning the exercise of legal rights should not,\nhowever, extend so far as to palpably impair or nullify the statutory procedure requiring drivers to\nchoose between taking the test or losing their licenses. It is common knowledge that the human\nbody dissipates alcohol rapidly and, indeed, under subdivision 3 of section 1192 of the Vehicle\nand Traffic Law, test results are admissible in evidence only if the test had been taken within two\nhours of the time of arrest. Where the defendant wishes only to telephone his lawyer or consult\nwith a lawyer present in the station house or immediately available there, no danger of delay is\nposed. But, to be sure, there can be no recognition of an absolute right to refuse the test until a\n170\n\n\x0clawyer reaches the scene (see Matter of Finocchairo v. Kelly, 11 N.Y.2d 58, 61 [VAN VOORHIS,\nJ., concurring]). If the lawyer is not physically present and cannot be reached promptly by\ntelephone or otherwise, the defendant may be required to elect between taking the test and\nsubmitting to revocation of his license, without the aid of counsel.\nNor is any issue of self-incrimination presented in this case, namely, whether defendant was\nsubject to a chemical test, on which Schmerber v. California, (384 U.S. 757), involving a blood\ntest, would be applicable (see, also, State v. Kenderski, 99 N.J.Super. 224).\nAccordingly, the order of the Appellate Term should be affirmed.\n\nADMINISTERING THE BREATHALYZER TEST:\nThe breathalyzer test must be given within two hours of the arrest of the suspect. Prior to\nadministering the test, the suspect must be closely monitored for a period of at least twenty\nminutes. During this time, the suspect will not be allowed to chew gum, take mouthwash, or place\nany other object in their mouth. This is to guard against a false reading caused by introducing a\nchemical substance into the suspect\xe2\x80\x99s mouth.\nThe suspect will then be asked to blow for a sustained period of time into a small glass ampule.\nThis ampule will then be analyzed by the breathalyzer machine which in turn will print out a copy\nof the machine\'s analysis of the suspect\xe2\x80\x99s blood alcohol content. Breathalyzers don\xe2\x80\x99t actually\nmeasure blood alcohol concentration (BAC) directly, they estimate BAC based on breath alcohol.\nIt is estimated that a breathalyzer machines are accurate to within .01. That degree of accuracy\nmay sound great, but consider the fact that if the test is off by .01, the range when a person blows\ninto the machine can be from .07 to .09. Since the law in NYS is that it is a crime to drive with a\nBAC of .08, but a violation to drive with a BAC of .07, that degree of accuracy of .01 may not be\nso great after all.\nFACTORS TO BE CONSIDERED IN DECIDING TO TAKE THE TEST: If possible, a\nsuspect should consult with an attorney before making the decision to take a breathalyzer test. The\nfollowing are some of the more typical matters to consider in making this decision:\n\xe2\x80\xa2 Was an accident involved?\n\xe2\x80\xa2 Does the driver have a prior alcohol related driving conviction? If so, when did this occur?\n\xe2\x80\xa2 Does the driver have a prior DWI conviction? If so, when did this occur?\n\xe2\x80\xa2 Will the driver need their license for purposes of employment or other reasons?\nNEW YORK FIELD SOBRIETY TESTS: When a police officer suspects a driver of being\nintoxicated, they will ask the driver to perform a series of physical acts to determine whether the\nphysical coordination or lack thereof is indicative of intoxication or the influence of drugs. These\nare called field sobriety tests and vary across the state.\nGenerally, the field sobriety tests consist of the point finger-to-nose, walk-and-turn in a straight\nline, stand on one leg, the Horizontal Gaze Nystagmus (HGN), and recite the alphabet. The officers\nalso use their personal observations to make a determination of intoxication. Depending on how a\nsuspect performs in these various tests, the officer may request the suspect to breath into a small\n171\n\n\x0cportable device known as an Alco-Sensor. This is not to be confused with the breathalyzer\nmachine. The Alco-Sensor is used as a screening tool to determine the presence of alcohol in your\nbreath. It is not evidence of intoxication itself. A suspect can refuse to submit to the field sobriety\ntests in the same manner as refusing to take a breathalyzer test.\nRegardless of whether a driver submits to the field sobriety tests or agrees to the breathalyzer test,\nan officer is making observations about the suspect\xe2\x80\x99s condition. These include whether the officer\nsmells alcohol on the suspects breath, the suspect has blood shot eyes, sways while standing, has\nslurred speech, or has a flushed face. All of these observations can be submitted as evidence of\nintoxication through testimony of the officer at trial.\nFINANCIAL COSTS OF A DWI ARREST/CONVICTION: Whether a person is guilty or not\nof driving while intoxicated, just being charged can be expensive. Attorney fees, loss of time from\nwork, drastically increased rates of insurance are all to be expected. The following can be found\non\nthe\nNew\nYork\nState\nDepartment\nof\nMotor\nVehicles\nwebsite\n(dmv.ny.gov) regarding the penalties for an alcohol or drug-related violation include the loss of\ndriving privileges, fines, and a possible jail term. (https://dmv.ny.gov/org/tickets/penaltiesalcohol-or-drug-related-violations July 23, 2018)\n\nViolation\n\nFine\n\nJail\n\nLicense Action\n\nAggravated Driving While\nIntoxicated (A-DWI)\n\n$1,000 - $2,500\n\n1\nyear\n\nRevoked for at least one year\n\nSecond A-DWI in 10 years (E\nfelony)\n\n$1,000 - $5,000\n\n4\nyears\n\nRevoked for at least 18 months\n\nThird A-DWI in 10 years (D\nfelony)\n\n$2,000 - $10,000\n\n7\nyears\n\nRevoked for at least 18 months\n\nDriving While Intoxicated\n(DWI) or Driving While\nImpaired by a Drug (DWAIDrug)\n\n$500 - $1,000\n\n1\nyear\n\nDWI-Revoked for at least six\nmonths. DWAI-Drugs Suspended for at least six\nmonths\n\nSecond DWI/DWAI-Drug\nviolation in 10 years (E felony)\n\n$1,000 - $5,000\n\n4\nyears\n\nRevoked for at least one year\n\n172\n\n\x0cViolation\n\nFine\n\nJail\n\nLicense Action\n\nThird DWI/DWAI-Drug\nviolation in 10 years (D felony)\n\n$2,000 - $10,000\n\n7\nyears\n\nRevoked for at least one year\n\nDriving While Ability Impaired\nby a Combination of\nAlcohol/Drugs (DWAICombination)\n\n$500 - $1,000\n\n1\nyear\n\nRevoked for at least six months\n\nSecond DWAI/Combination in\n10 years (E felony)\n\n$1,000 - $5,000\n\n4\nyears\n\nRevoked for at least one year\n\nThird DWAI/Combination in 10\nyears (D felony)\n\n$2,000 - $10,000\n\n7\nyears\n\nRevoked for at least one year\n\nDriving While Ability Impaired\nby Alcohol (DWAI)\n\n$300 - $500\n\n15\ndays\n\nSuspended for 90 days\n\nSecond DWAI violation in 5\nyears\n\n$500 - $750\n\n30\ndays\n\nRevoked for at least six months\n\nThird or subsequent DWAI\nwithin 10 years (Misdemeanor)\n\n$750 - $1,500\n\n180\ndays\n\nRevoked for at least six months\n\nZero Tolerance Law\n\n$125 civil penalty\nand $100 fee to\nterminate\nsuspension\n\nNone\n\nSuspended for six months\n\nSecond Zero Tolerance Law\n\n$125 civil penalty\nand $100 reapplication fee\n\nNone\n\nRevoked for one year or until\nage 21\n\n173\n\n\x0cViolation\n\nFine\n\nJail\n\nLicense Action\n\nChemical Test Refusal\n\n$500 civil penalty\n($550 for\ncommercial\ndrivers)\n\nNone\n\nRevoked for at least one year, 18\nmonths for commercial drivers\n\nChemical Test Refusal within\nfive years of a previous DWIrelated charge/Chemical Test\nRefusal\n\n$750 civil penalty\n\nNone\n\nRevoked for at least 18 months,\none-year or until age 21 for\ndrivers under age 21, permanent\nCDL revocation for commercial\ndrivers\n\nChemical Test Refusal - Zero\nTolerance Law\n\n$300 civil penalty\nand $100 reapplication fee\n\nNone\n\nRevoked for at least one year\n\nChemical Test Refusal Second or subsequent Zero\nTolerance Law\n\n$750 civil penalty\nand $100 reapplication fee\n\nNone\n\nRevoked for at least one year\n\nDriving Under the Influence\n(Out-of-State)\n\nN/A\n\nN/A\n\nRevoked for at least 90 days. If\nless than 21 years of age,\nrevoked at least one year\n\nDriving Under the Influence\n(Out-of State) with any\nprevious alcohol-drug violation\n\nN/A\n\nN/A\n\nRevoked for at least 90 days\n(longer term with certain prior\noffenses). If less than 21 years of\nage, revoked at least one year or\nuntil age 21 (longest term)\n\nZERO TOLERANCE LAW: This law makes it illegal for a driver under age 21 to have\nconsumed any alcohol. A police officer may temporarily detain a driver to request or administer a\nchemical test to determine the driver\xe2\x80\x99s Blood Alcohol Content (BAC). If the driver\xe2\x80\x99s BAC is .02\nto .07 percent, the driver will be notified to appear at a DMV hearing. If the judge\xe2\x80\x99s finding\nsupports the charge, the penalty is a 6-month license suspension, a $125 civil penalty, and a $100\nsuspension termination fee. Each additional offense will result in the driver\xe2\x80\x99s license being revoked\nfor at least one year or until age 21, whichever is longer, plus a $125 civil penalty, and a $100\nlicense re-application fee. If the driver\xe2\x80\x99s BAC is .05 percent or greater, the police may charge\n174\n\n\x0cdriver with driving while ability impaired (DWAI) or driving while intoxicated (DWI) and may\nprosecute the driver in criminal court. (Source: dmv.ny.gov)\nIGNITION INTERLOCK: Any driver convicted of misdemeanor or felony drunk driving\ncharges \xe2\x80\x93 even first-time offenders \xe2\x80\x93 are required to install and maintain ignition interlock devices\nat their own expense on any vehicles they own or operate. For an Aggravated DWI offense or any\nrepeat alcohol or drug offense within five years, a judge is required to order the system installed\non each vehicle owned or operated by the motorist during both the revocation period and any\nprobation period that follows. The judge also must order an alcohol assessment for the repeat\noffender.\nThe device, purchased and installed at the expense of the motorist, is connected to a motor vehicle\nignition system and measures the alcohol content of the operator\xe2\x80\x99s breath. As a result, the vehicle\ncannot be started until the driver provides an acceptable sample breath. The motorist may be\nqualified to hold a conditional license during the time an interlock device is in use. This conditional\ndriver license will be revoked if the motorist does not comply with the court terms or for conviction\nof any traffic offense except parking, stopping or standing. (Source: dmv.ny.gov)\nLEANDRAS LAW: This legislation makes operating a motor vehicle while intoxicated or under\nthe influence of drugs with a passenger under the age of 16 a Class E felony punishable by up to\nfour years in state prison. Courts must order all drivers, including youthful offenders, convicted of\ndriving while intoxicated or aggravated driving while intoxicated to install and maintain an ignition\ninterlock on any vehicle owned or operated by such driver for at least 12 months. The law also\nmakes it a felony to drive drunk with a conditional license. Drivers who drive while intoxicated or\nimpaired by drug and cause the death of a child under 16 in the vehicle may be charged with a\nClass B felony punishable by up to 25 years in prison. Drivers who drive while intoxicated or\nimpaired by drugs and cause serious physical injury to a child under 16 in the vehicle may be\ncharged with a Class C felony punishable by up to 15 years in prison. (Source: dmv.ny.gov)\nLOSS OF LICENSE FOR A DWI CONVICTION: After a conviction of an alcohol-related\noffense, the defendant\xe2\x80\x99s license is usually revoked. One exception is for first Driving While\nAbility Impaired convictions which results in a suspension for 90 days, not a revocation. Even if\nnot convicted, a defendant\xe2\x80\x99s license can be still be revoked by the DMV for refusing to take a\nbreathalyzer test.\nIn some instances, by paying a fee and attending and completing a state-approved Alcohol and\nDrug Rehabilitation program, sometimes called a Drinking Driver Program, and by attending\nVictim Impact Panels, you can apply to have your license restored and, additionally, the court can\nallow you a \xe2\x80\x9cconditional license,\xe2\x80\x9d which enables you to drive to work, school, and medical\nappointments.\nLEGALITY OF SOBRIETY CHECKPOINTS AND ROADBLOCKS: In the People v. Scott,\n63 NY2d 518 (1984) case the New York Court of Appeals upheld the constitutionality of such\nroadblocks, as long as they are conducted according to certain guidelines and not applied in a\ndiscriminatory manner.\n\n175\n\n\x0cSTATE OF NEW YORK COURT OF APPEALS People v. Scott\n63 NY2d 518 (1984)\n(Case Syllabus edited by the Author)\nMEYER, J.\nA roadblock established pursuant to a written directive of the County Sheriff for the purpose of\ndetecting and deterring driving while intoxicated or while impaired, and as to which operating\npersonnel are prohibited from administering sobriety tests unless they observe listed criteria,\nindicative of intoxication, which give substantial cause to believe that the operator is intoxicated,\nis constitutionally permissible, notwithstanding that the location of the roadblock is moved several\ntimes during the three- to four-hour period of operation, and notwithstanding that legislative\ninitiatives have also played a part in reducing the incidence of driving while intoxicated in recent\nyears. Defendant having pleaded guilty to driving while impaired after denial of his motion to\nsuppress the evidence obtained at the roadblock, the order of the County Court, Genesee County,\naffirming his conviction, should, therefore, be affirmed.\nI\nAt about 2:00 A.M. on Saturday, September 25, 1982, defendant, while driving on Route 5 in the\nTown of LeRoy, came up to a roadblock established pursuant to a directive of the Sheriff of\nGenesee County. He was directed to pull to the side and there was requested by Chief Deputy\nSheriff Maha to produce his license, registration and insurance card. Observing that defendant\nfumbled a bit with his wallet, that his eyes were watery and bloodshot and that there was a strong\nodor of alcohol, Maha asked whether defendant had been drinking. After defendant responded that\nhe had just left a bar, he was asked to step out of his car. As he did so he was unstable on his feet\nand was unable successfully to perform heel-to-toe and finger-to-nose tests. Based on those facts\nand an alco-sensor breath screening test, which defendant agreed to take, Maha concluded that\ndefendant was intoxicated and placed him under arrest.\nThe roadblock had been established pursuant to a March 5, 1982 memorandum of the County\nSheriff which called attention to the deaths, injuries and losses occasioned by intoxicated drivers\nand the need "to employ every lawful means to deter and apprehend the drunken driver." It quoted\nfrom the October, 1981 Report of the Governor\'s Alcohol and Highway Safety Task Force the\nvalue of "systematic traffic checkpoints at known DWI and high accident locations during peak\nhours", and the advisability that, "Such checks at specific sites * * * be of short duration, with an\nability to move quickly to new sites to insure that the drinking driver will not be able to forecast\ncheckpoint locations", and noted that the "greatest risk is on weekend late evening/early morning\nhours, when one in every ten vehicles or less contains an intoxicated driver." In succeeding detailed\nparagraphs it established procedures for site selection, lighting and signs; avoidance of\ndiscrimination by stopping all vehicles, or every second, third or fourth vehicle; location of\nscreening areas off the highway to which vehicles would be directed; the nature of the inquiries to\nbe made, with specific direction that unless the operator\'s appearance and demeanor gave cause to\nbelieve him or her intoxicated sobriety tests not be given. It listed the factors to be considered and\nstated that neither the odor of alcohol alone nor any one of the listed factors would suffice as a\n176\n\n\x0cbasis for sobriety tests. It also directed that checkpoint sites be prescreened and that from two to\nfour locations be used during a four-hour period.\nUnder that procedure roadblocks were established once each month between midnight and 3:00\nA.M., at locations selected in advance by senior personnel. Of the predetermined sites, four had\nbeen selected for use on September 25, 1982, the roadblock at each location being maintained for\nsome 20 to 30 minutes before moving on to the next. Defendant was stopped at the third location\nin use that night. At that location warning signs were set up on the shoulders facing traffic from\nboth directions some 300 feet in advance of the checkpoint,1 two police vehicles exhibiting\nflashing roof lights were placed so that their headlights illuminated the signs, and flares were\nplaced in the center of the road. The checkpoint was manned by 10 persons, 6 from the Sheriff\'s\noffice and 4 from the auxiliary police, and all vehicles approaching from either direction were\nstopped.2 In addition, two patrol cars were stationed in the area to follow and observe for possible\nviolations any vehicle that avoided the roadblock by making a U-turn.\nDefendant moved to suppress the evidence obtained at the roadblock. After a hearing the Town\nJustice denied the motion, finding that it had been operated in a uniform, nonarbitrary and\nnondiscriminatory manner. The County Court affirmed, finding the State\'s interest in curbing\ndrunken drivers great and the operation of the roadblock sufficient to allay feelings of fright or\nannoyance and to circumscribe sufficiently the discretion of the personnel engaged in the\noperation. On appeal to this court defendant argues that deterrence is an improper purpose, that a\ntemporary roadblock is constitutionally impermissible, and that it has not been shown that less\nintrusive means of enforcement would not be effective. We affirm.\nII\nThere is, of course, no question that a roadblock or checkpoint stop is a seizure within the meaning\nof the Fourth Amendment but it is also true that there is only a diminished expectation of privacy\nin an automobile and that individualized suspicion is not a prerequisite to a constitutional seizure\nof an automobile which is "carried out pursuant to a plan embodying explicit, neutral limitations\non the conduct of individual officers.\xe2\x80\x9d\nThe permissibility of a particular practice is a function of its "reasonableness," which is determined\nby balancing its intrusion on the Fourth Amendment interests of the individual involved against\nits promotion of legitimate governmental interests. Of importance in that analysis are the\ngovernmental interest involved and the effect of the procedure in relation to it, on the one hand,\nand, on the other, the degree of intrusion of the procedure on the individual subjected to it,\nmeasured in terms of both its subjective effect and the degree of discretion vested in the officials\ncharged with carrying it out.\nThe importance of the governmental interest here involved is beyond question. "The carnage\ncaused by drunk drivers is well documented and needs no detailed recitation here."\nMoreover, in light of the specific procedures devised and promulgated to law enforcement\npersonnel by the head of their department, the Sheriff, and the way in which the particular\nroadblock was being operated when defendant was stopped, the courts below could properly\nconclude that it did not intrude to an impermissible degree upon the privacy of motorists\n177\n\n\x0capproaching the checkpoint, that it was being maintained in accordance with a uniform procedure\nwhich afforded little discretion to operating personnel, and that adequate precautions as to safety,\nlighting and fair warning of the existence of the checkpoint were in operation. The fact that the\nplan contemplated situations in which not every car would be stopped did not affect its validity in\nview of the specific nondiscriminatory pattern of selection it called for and of the reasonableness\nof allowing some cars to pass when traffic became congested.\nNor is the plan invalid because of its deterrent purpose, the shifting of checkpoints after short\nperiods of time, or the question raised by defendant concerning its efficiency.\nThe value of roadblocks in decreasing drunk driving is attested by both the United States\nDepartment of Transportation and the Governor\'s Alcohol and Highway Safety Task Force. A\n1983 paper on Safety Checkpoints For DWI Enforcement issued by the Department of\nTransportation\'s National Highway Traffic Safety Administration\'s Office of Alcohol\nCountermeasures emphasizes the importance of informing the public about DWI checkpoint\noperations as the chief means of deterring driving while intoxicated, and the Governor\'s Task Force\nfound "that the systematic, constitutionally conducted traffic checkpoint is the single most\neffective action in raising the community\'s perception of the risk of being detected and\napprehended for drunk driving". Moreover, the Supreme Court has held deterrence to be a\nlegitimate governmental purpose not only with respect to legislation but also with respect to\ncheckpoint stops. We conclude, therefore, as did the Maryland Court of Appeals in Little v State\nthat deterrence by fear of apprehension is a constitutionally proper means of keeping drunk drivers\noff the highways, though it may not be with respect to pedestrians (see People v Johnson, 63\nN.Y.2d 888).\nNor is constitutionality affected by the shifting and temporary nature of the checkpoints. The fact\nthat the Supreme Court has approved permanent roadblocks, but disapproved roving patrol stops\nis not determinative. What is critical is the intrusiveness of the checkpoint in relation to the\ngovernmental purpose involved. The subjective effect upon a vehicle driver approaching a\nroadblock is unrelated to whether it is permanent or was established but a few minutes before the\ndriver approached it; in either instance his or her observation of it will be measured in minutes if\nnot seconds. The likelihood of there being the kind of fright or annoyance that invalidates a random\nstop made by a roving patrol is obviated in the case of a temporary checkpoint by the visible signs\nof authority which the checkpoint entails \xe2\x80\x94 signs announcing the purpose, lighting, and\nidentifiable police vehicles and the observable fact that there is a uniform system for stopping cars\n(United States v Hernandez, 739 F.2d 484; Little v State, supra). The only subjective difference\nbetween temporary and permanent checkpoints is that because its location is known in advance\nthe latter can be avoided entirely by using a different route, but that difference is minimal as\nconcerns anxiety, especially since a temporary checkpoint can also be avoided. Of greater\nimportance on the other side of the equation is the fact that both the detection and deterrence\npurposes would be adversely affected, if not forestalled entirely, were drunk driving checkpoints\nrequired to remain in one place, the known and permanent location of the checkpoint making it\neasily avoidable.\nNor, finally, is there sufficient question about the productivity of DWI checkpoints to require\ninvalidation of the procedure. The contrary argument is based on the effectiveness of the procedure\n178\n\n\x0cas a means of apprehension and ignores entirely its deterrent effect. There can be no question that\nsubstantial reductions have occurred since 1980 in the deaths, injuries and damage resulting from\ndrunken driving. Thus, the Report of the Subcommittee on Drunk Driving of the Assembly\nTransportation Committee (at p 2) contains findings that highway fatalities from 1980 to 1983\ndecreased by 21%, while the risk of being in an accident, as measured by vehicle miles traveled,\nincreased by 5.5%; alcohol-involved fatal accidents decreased 25% from 1981 to 1983; all\naccidents have declined by less than 1.5% since 1980, while reported alcohol-involved accidents\nhave fallen at almost ten times that rate (14.5%); accidents during bar hours have declined 21.3%\nsince 1980, while nonbar hour accidents actually have increased 3.6%; and fatal accidents during\nbar hours have decreased 33% since 1980, while nonbar hour fatal accidents have decreased only\n11%. The extent to which those results stem from legislative reforms during that period as distinct\nfrom the deterrent effect of roadblocks and other educational and public information programs\naimed at combatting the problem is not revealed, but in our view is not of constitutional moment.\nIt is enough that such checkpoints, when their use becomes known, do have a substantial impact\non the drunk driving problem (Little v State, 300 Md, at p 504, supra).\nThe State is entitled in the interest of public safety to bring all available resources to bear, without\nhaving to spell out the exact efficiency coefficient of each component and of the separate effects\nof any particular component (cf. Mackey v Montrym, 443 US, at p 19, supra). There being a\nreasonable basis for concluding that considering both its detection and its deterrence effect, the\nDWI checkpoint procedure in question is a valuable component of the program to control drunk\ndriving, we conclude that it is a sufficiently productive mechanism to justify the minimal intrusion\ninvolved.\nFor the foregoing reasons, the order of the County Court, Genesee County, should be affirmed.\nRECOMMENDED CONDUCT DURING A TRAFFIC STOP:\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nPull over to the side of the road as soon as it is safe to do so.\nDo not exit the vehicle unless told to do so.\nOpen the driver\xe2\x80\x99s side window.\nTurn down the music.\nKeep both of your hands on the steering wheel in clear view of the officer\nNever reach under the seat or in the glove box\nTry to remain relaxed and be respectful even if the officer is not.\nDo not resist arrest if it occurs.\n\nCONSENT TO SEARCH VEHICLE: Usually a respectful attitude will elicit a more favorable\nresponse from the officer. However, some defense attorneys advise to never agree to search of the\nvehicle even if there is nothing to hide.\n\nReferences:\nArrest and Testing. (n.d.). Retrieved July 27, 2018, from http://www.nydwi.com/DWIQA/ArrestTesting.php\n179\n\n\x0cDo You Take the Test. (n.d.). Retrieved July 27, 2018, from\nhttp://www.nydwi.com/blog/2014/12/the-oldest-question-do-you-take-the-test/\nFind Law, Legal Information, and Attorneys. (n.d.). Retrieved July 25, 2018, from\nhttps://www.findlaw.com/\nJustia Law. (n.d.). Retrieved July 25, 2018, from https://law.justia.com/\nNew York State. (n.d.). New York State Unified Court System. Retrieved July 25, 2018, from\nhttp://nycourts.gov/\nNew York State Law. (n.d.). Retrieved July 27, 2018, from\nhttp://ypdcrime.com/vt/dwi_penalties.htm\nNy dwi . com. (n.d.). Retrieved July 27, 2018, from\nhttp://www.nydwi.com/?gclid=EAIaIQobChMIsZ_zsa73AIVCzxpCh05qwjCEAAYASAAEgJCC_D_BwE\nPogue, D. L., Clifford, E., & Schwartz, A. L. (2009). Understanding New York Law, 2013-14.\nUpstate Legal Publishers\nReisinger, D. (2017, December 20). Penalties for alcohol or drug-related violations. Retrieved\nJuly 27, 2018, from https://dmv.ny.gov/org/tickets/penalties-alcohol-or-drug-related-violations\nWelcome to LII. (n.d.). Retrieved July 25, 2018, from https://www.law.cornell.edu/\n\n180\n\n\x0cCHAPTER 7\nDISCRIMINATION LAW\nINTRODUCTION\n\xe2\x80\x9cDiscrimination is rarely so obvious or its practice so overt that recognition of it is instant and\nconclusive, it being accomplished usually by devious and subtle means.\xe2\x80\x9d\nThis quotation is from the 300 Gramatan Association v. State Division of Human Rights, 45 NY2d\n176 (1978) case. This case involved an individual named Harold Johnson, who attempted to rent\nan apartment in a 96-unit apartment building owned by 300 Gramatan Avenue Associates in the\nCity of Mount Vernon, NY. Mr. Johnson went to the premises on March 10, 1975, to examine a\nvacant five-room apartment and, after talking with the superintendent, attempted to rent it.\nMr. Johnson was told later that day that the apartment was "under litigation" and not available for\nrent. Mr. Johnson filed a complaint two days later with the State Division of Human Rights. The\nState Division of Human Rights held a hearing and determined that the owner of the building had\nviolated NY\xe2\x80\x99s Human Rights Law by discriminating against Mr. Johnson when they refused to\nconsider him as a prospective tenant because of his race and color. Mr. Johnson is a black man.\nTestimony at the hearing established the vacant apartment was never under \xe2\x80\x9cunder litigation\xe2\x80\x9d on\nMarch 10, 1975. On appeal, the NY Court of Appeals agreed with the Division of Human Rights\nthat found in favor of Mr. Johnson.\nSome discrimination is very overt and direct. But often it is not and is difficult to ascertain and\nprove. This chapter will discuss the various laws in place to combat discrimination and the\nremedies available to victims of discrimination.\nFEDERAL LAWS AGAINST DISCRIMINATION\nThe federal government has enacted several statutes proscribing discrimination of various types\nand in various contexts, and providing remedies for violations of these statutes.\nThe following are employment-related anti-discrimination statutes:\n\xe2\x80\xa2\n\nEqual Pay Act of 1963, making sex discrimination in employment unlawful.\n\n\xe2\x80\xa2\n\nTitle VII of the Civil Rights Act of 1964 (Title VII), making race, color, creed, religion,\nand national origin in employment unlawful. (Title VII\xe2\x80\x99s anti-discrimination requirements\napply to more than just employment discrimination.)\n\n\xe2\x80\xa2\n\nAge Discrimination in Employment Act of 1967 (ADEA), making age discrimination in\nemployment unlawful, protecting individuals over the age of forty.\n\n\xe2\x80\xa2\n\nAmericans with Disabilities Act of 1990 (ADA), making discrimination based on\ndisability unlawful, whether the disability is permanent or temporary.\n\nEQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)\nFederal anti-discrimination laws related to employment are enforced by the administrative agency\ncalled the Equal Employment Opportunity Commission (EEOC). EEOC hearings are presided\nover by an Administrative Law Judge. Jurisdiction of the EEOC applies to any employer with 15\nor more employees, and since it is enforcing federal law, extends over all states.\n181\n\n\x0cIf a person feels they are a victim of discrimination that is a violation of federal law, they must\nexhaust their EEOC administrative remedies first before they can proceed in a federal court.\nUsually, if an EEOC decision goes against a person or company, the federal trial court will not\nsubstitute its judgment for that of the EEOC. It is a \xe2\x80\x9cpresumption\xe2\x80\x9d that the preceding EEOC\nadministrative proceeding had reached a proper conclusion.\nRemedies under federal discrimination laws, whether administrative or judicial, entitle the party\ndiscriminated against to attorney fees, back pay, pre-judgment interest, and any lost benefits.\nUnder federal laws, the prevailing party is not entitled to punitive damages.\nNYS LAWS AGAINST EMPLOYEMENT DISCRIMINATION\nVery much like the federal Constitution, the NYS Constitution proscribes discrimination quite\ngenerally. In 1951 the NYS legislature enacted the Human Rights Law (HRL), which over the\nyears has been amended and added to. The HRL forbids discrimination because of age, race, creed,\nreligion, color, national origin, sex, sexual orientation, disability, or marital status as to hiring,\ncompensation, and any other terms and conditions of employment. The HRL is found at Article\n15 of NYS\xe2\x80\x99 Executive Law.\nDIVISION OF HUMAN RIGHTS (DHR)\nThe administrative agency that enforces the HRL is NYS\xe2\x80\x99 Division of Human Rights (DHR). Just\nlike its counter-part EEOC at the federal level, the DHR is presided over by an Administrative\nLaw Judge. Unlike the EEOC, jurisdiction of the DHR extends to any NYS employer with more\nthan four employees.\nLike the federal law, access to the NYS courts requires that administrative remedies of DHR be\nused and exhausted first before a victim of employment discrimination is allowed to file a court\ncase. NYS courts are also reluctant to reverse decisions by the DHR.\nIn NYS, a person alleging employment discrimination may seek a jury trial, may obtain a job offer\nor reinstatement, may get compensation for lost wages, may recover some court costs, attorney\nfees, and may be awarded punitive damages (which are not allowed under federal law).\nHOW ARE EMPLOYMENT DISCRIMINATION CASES ANALYZED?\nAs long as a claimant meets the jurisdictional requirements for the number of employees employed\nby the employer, a claimant has a choice of filing a complaint under the federal or state\nemployment discrimination laws and agencies. The facts of their particular case may dictate which\nlaw or agency would be the best fit. Regardless of which they choose, the federal and NYS\nagencies and courts use the same two criteria, or standards, for determining whether there has been\nemployment discrimination: (1) \xe2\x80\x9cdisparate treatment\xe2\x80\x9d and, (2) \xe2\x80\x9cdisparate impact.\xe2\x80\x9d\nDISPARATE TREATMENT: Disparate treatment occurs when someone is treated less\nfavorably in an employment situation than others because of intentional unlawful discrimination.\nThe burden of proof in this civil matter is by a preponderance of the evidence. A claimant must\nprove that the employer intended to discriminate. The claimant must prove that the employer\xe2\x80\x99s\nproffered reasons for such action as failure to hire, failure to give a pay raise, failure to promote,\netc., are untrue and the actions were or were not taken because of the intentional unlawful\n182\n\n\x0cdiscrimination of the employer. It is certainly easier to prove disparate treatment if it is not an\nisolated case. It is usually easier to prove intentional discrimination when there is a pattern of\nemployer discriminatory behavior.\nWhat happens when the evidence of a case shows that there is both a legitimate and illegal reason\nfor the employer\xe2\x80\x99s actions? The U.S. Supreme Court decision in Price Waterhouse v Hopkins, 490\nUS 228 (1989) answers this question. Ann Hopkins brought a $25M lawsuit against her employer,\nPrice Waterhouse, alleging that her employer, a male-dominated accounting firm, had passed her\nover for promotion because she was a woman. At that time, the firm had 662 partners of which\nonly seven were women. Price Waterhouse proved that they had lawfully not promoted the plaintiff\nbecause of her weak interpersonal skills and for that reason alone, she was not be eligible for\npartnership status. The United States Supreme Court ruled in favor of Price Waterhouse, holding\nthat so long as legitimate reasons outweighed the impermissible one, in this case sex\ndiscrimination, then the employer would not be liable for employment discrimination.\nAbercrombie is a national chain of clothing stores that required its employees in 2008 to comply\nwith a "Look Policy" that reflected the store\'s style and forbid black clothing and caps, though the\nmeaning of the term cap was not defined in the dress policy. In 2008, Samantha Elauf, a practicing\nMuslim, applied for a position at an Abercrombie store. She wore a headscarf, or hijab, every day,\nand did so in her interview.\nElauf did not mention her headscarf during her interview and did not indicate that she would need\nan accommodation from the \xe2\x80\x9cLook Policy.\xe2\x80\x9d Her interviewer likewise did not mention the\nheadscarf, though the interviewer contacted her district manager, who told her to lower Elauf\'s\nrating on the appearance section of the application, which lowered her overall score and prevented\nher from being hired. The EEOC sued Abercrombie on Elauf\'s behalf claiming that the company\nhad violated Title VII of the Civil Rights Act of 1964 by refusing to hire Elauf because of her\nheadscarf.\nThe U.S. Supreme Court, on June 1, 2015 ruled 8-1 in Elauf\'s favor. (Note the length of time these\nactions can take.) The court held that if the applicant can show that the employer\xe2\x80\x99s decision not to\nhire an applicant was based on a desire to avoid having to accommodate a religious practice, then\nthe employer has violated Title VII. The Court also held that Title VII does not demand mere\nneutrality; instead it creates an affirmative duty to accommodate religious practices.\n\nEQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. ABERCROMBIE &\nFITCH STORES, INC.,\n\nSUPREME COURT OF THE UNITED STATES\n183\n\n\x0cEQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. ABERCROMBIE\n& FITCH STORES, INC.,\n575 U. S. ____ (2015)\n(Case Syllabus edited by the Author)\n\nRespondent (Abercrombie) refused to hire Samantha Elauf, a practicing Muslim, because the\nheadscarf that she wore pursuant to her religious obligations conflicted with Abercrombie\'s\nemployee dress policy. The Equal Employment Opportunity Commission (EEOC) filed suit on\nElauf\'s behalf, alleging a violation of Title VII of the Civil Rights Act of 1964, which, inter\nalia, prohibits a prospective employer from refusing to hire an applicant because of the applicant\'s\nreligious practice when the practice could be accommodated without undue hardship. The EEOC\nprevailed in the District Court, but the Tenth Circuit reversed, awarding Abercrombie summary\njudgment on the ground that failure-to-accommodate liability attaches only when the applicant\nprovides the employer with actual knowledge of his need for an accommodation.\nHeld: To prevail in a disparate-treatment claim, an applicant need show only that his need for an\naccommodation was a motivating factor in the employer\'s decision, not that the employer had\nknowledge of his need. Title VII\'s disparate-treatment provision requires Elauf to show that\nAbercrombie (1) "fail[ed]. . . to hire" her (2) "because of" (3) "[her] religion" (including a religious\npractice). 42 U. S. C. \xc2\xa72000e-2(a)(1). And its "because of" standard is understood to mean that the\nprotected characteristic cannot be a "motivating factor" in an employment decision. \xc2\xa7 2000e-2(m).\nThus, rather than imposing a knowledge standard, \xc2\xa7 2000e-2(a)(1) prohibits certain motives,\nregardless of the state of the actor\'s knowledge: An employer may not make an applicant\'s religious\npractice, confirmed or otherwise, a factor in employment decisions. Title VII contains no\nknowledge requirement. Furthermore, Title VII\'s definition of religion clearly indicates that\nfailure-to-accommodate challenges can be brought as disparate-treatment claims. And Title VII\ngives favored treatment to religious practices, rather than demanding that religious practices be\ntreated no worse than other practices.\n731 F. 3d 1106, reversed and remanded.\nSCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY,\nGINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion\nconcurring in the judgment. THOMAS, J., filed an opinion concurring in part and dissenting in\npart.\nDISPARATE IMPACT: Disparate impact lacks discriminatory intent. It occurs when a neutral\nemployment practice has an adverse impact on employees protected by anti-discrimination laws.\nWhile the employer\xe2\x80\x99s action appears to be legal or proper on the surface, the employer\xe2\x80\x99s action\nnegatively affects certain employees more than others in an illegally discriminatory way. The\nplaintiff-claimant does not have to prove that the employer intended to discriminate; proof of the\ndiscrimination consists of the discriminatory outcome or adverse impact, regardless of the\nemployer\xe2\x80\x99s intent. However, if an employer can prove that there is a lawful business justification\nfor the employer\xe2\x80\x99s actions, then they will not be held liable under a disparate impact case.\nThe case that follows, Frank Ricci, et al., v John DeStefano, et al. 557 U.S. 557 (2009) is a U.S.\nSupreme Court decision regarding disparate impact. The Supreme Court held in a 5\xe2\x80\x934 decision\n184\n\n\x0cthat the city of New Haven\'s decision to ignore the test results for promotion of some of its\nfirefighters violated Title VII. The Court found that because the city did not have a "strong basis\nin evidence" that it would have subjected itself to disparate impact liability if it had promoted the\nwhite and Hispanic firefighters instead of the black firefighters, ignoring the test results was itself\ndiscriminatory.\n\nFRANK RICCI, et al., PETITIONERS v. JOHN DeSTEFANO et al\nSUPREME COURT OF THE UNITED STATES\nFRANK RICCI, et al., PETITIONERS v.\nJOHN DeSTEFANO et al.\n557 U.S. 557 (2009)\n(Case Syllabus edited by the Author)\nJustice Kennedy delivered the opinion of the Court.\n\xe2\x80\xa6In 2003, 118 New Haven firefighters took examinations to qualify for promotion to the rank of\nlieutenant or captain. Promotion examinations in New Haven (or City) were infrequent, so the\nstakes were high. The results would determine which firefighters would be considered for\npromotions during the next two years, and the order in which they would be considered. Many\nfirefighters studied for months, at considerable personal and financial cost.\nWhen the examination results showed that white candidates had outperformed minority\ncandidates, the mayor and other local politicians opened a public debate that turned rancorous.\nSome firefighters argued the tests should be discarded because the results showed the tests to be\ndiscriminatory. They threatened a discrimination lawsuit if the City made promotions based on the\ntests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a\ndiscrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results\nand denied promotions to the candidates who had performed well. In the end the City took the side\nof those who protested the test results. It threw out the examinations.\nCertain white and Hispanic firefighters who likely would have been promoted based on their good\ntest performance sued the City and some of its officials. Theirs is the suit now before us. The suit\nalleges that, by discarding the test results, the City and the named officials discriminated against\nthe plaintiffs based on their race, in violation of both Title VII of the Civil Rights Act of 1964, 78\nStat. 253, as amended, 42 U. S. C. \xc2\xa72000e et seq., and the Equal Protection Clause of the\nFourteenth Amendment . The City and the officials defended their actions, arguing that if they had\ncertified the results, they could have faced liability under Title VII for adopting a practice that had\na disparate impact on the minority firefighters. The District Court granted summary judgment for\nthe defendants, and the Court of Appeals affirmed.\nWe conclude that race-based action like the City\xe2\x80\x99s in this case is impermissible under Title VII\nunless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it\nwould have been liable under the disparate-impact statute. The respondents, we further determine,\n185\n\n\x0ccannot meet that threshold standard. As a result, the City\xe2\x80\x99s action in discarding the tests was a\nviolation of Title VII. In light of our ruling under the statutes, we need not reach the question\nwhether respondents\xe2\x80\x99 actions may have violated the Equal Protection Clause.\nThe City\xe2\x80\x99s contract with the New Haven firefighters\xe2\x80\x99 union specifies additional requirements for\nthe promotion process. Under the contract, applicants for lieutenant and captain positions were to\nbe screened using written and oral examinations, with the written exam accounting for 60 percent\nand the oral exam 40 percent of an applicant\xe2\x80\x99s total score. To sit for the examinations, candidates\nfor lieutenant needed 30 months\xe2\x80\x99 experience in the Department, a high-school diploma, and certain\nvocational training courses. Candidates for captain needed one year\xe2\x80\x99s service as a lieutenant in the\nDepartment, a high-school diploma, and certain vocational training courses.\nAfter reviewing bids from various consultants, the City hired Industrial/Organizational Solutions,\nInc. (IOS) to develop and administer the examinations, at a cost to the City of $100,000. IOS is an\nIllinois company that specializes in designing entry-level and promotional examinations for fire\nand police departments examinations...[which]\xe2\x80\xa6would not unintentionally favor white\ncandidates.\nCandidates took the examinations in November and December 2003. Seventy-seven candidates\ncompleted the lieutenant examination\xe2\x80\x9443 whites, 19 blacks, and 15 Hispanics. Of those, 34\ncandidates passed\xe2\x80\x9425 whites, 6 blacks, and 3 Hispanics. 554 F. Supp. 2d, at 145. Eight lieutenant\npositions were vacant at the time of the examination. As the rule of three operated, this meant that\nthe top 10 candidates were eligible for an immediate promotion to lieutenant. All 10 were white.\nIbid. Subsequent vacancies would have allowed at least 3 black candidates to be considered for\npromotion to lieutenant.\nForty-one candidates completed the captain examination\xe2\x80\x9425 whites, 8 blacks, and 8 Hispanics.\nOf those, 22 candidates passed\xe2\x80\x9416 whites, 3 blacks, and 3 Hispanics. Ibid. Seven captain\npositions were vacant at the time of the examination. Under the rule of three, 9 candidates were\neligible for an immediate promotion to captain\xe2\x80\x947 whites and 2 Hispanics. Ibid.\nAt the final CSB meeting, on March 18, Ude (the City\xe2\x80\x99s counsel) argued against certifying the\nexamination results......\nKaren DuBois-Walton, the City\xe2\x80\x99s chief administrative officer, spoke on behalf of Mayor John\nDeStefano and argued against certifying the results. DuBois-Walton stated that the results, when\nconsidered under the rule of three and applied to then-existing captain and lieutenant vacancies,\ncreated a situation in which black and Hispanic candidates were disproportionately excluded from\nopportunity. DuBois-Walton also relied on Hornick\xe2\x80\x99s testimony, asserting that Hornick \xe2\x80\x9cmade it\nextremely clear that \xe2\x80\xa6 there are more appropriate ways to assess one\xe2\x80\x99s ability to serve\xe2\x80\x9d as a captain\nor lieutenant. Id., at A1120.\nBurgett (the human resources director) asked the CSB to discard the examination results. She, too,\nrelied on Hornick\xe2\x80\x99s statement to show the existence of alternative testing methods, describing\nHornick as having \xe2\x80\x9cstarted to point out that alternative testing does exist\xe2\x80\x9d and as having \xe2\x80\x9cbegun to\nsuggest that there are some different ways of doing written examinations.\xe2\x80\x9d Id., at A1125, A1128.\n186\n\n\x0cOther witnesses addressed the CSB. They included the president of the New Haven firefighters\xe2\x80\x99\nunion, who supported certification. He reminded the CSB that Hornick \xe2\x80\x9calso concluded that the\ntests were reasonable and fair and under the current structure to certify them.\xe2\x80\x9d Id., at A1137.\nFirefighter Frank Ricci again argued for certification; he stated that although \xe2\x80\x9cassessment centers\nin some cases show less adverse impact,\xe2\x80\x9d id., at A1140, they were not available alternatives for\nthe current round of promotions. It would take several years, Ricci explained, for the Department\nto develop an assessment-center protocol and the accompanying training materials. Id., at A1141.\nLieutenant Matthew Marcarelli, who had taken the captain\xe2\x80\x99s exam, spoke in favor of certification.\nThe CSB\xe2\x80\x99s decision not to certify the examination results led to this lawsuit. The plaintiffs\xe2\x80\x94who\nare the petitioners here\xe2\x80\x94are 17 white firefighters and 1 Hispanic firefighter who passed the\nexaminations but were denied a chance at promotions when the CSB refused to certify the test\nresults. They include the named plaintiff, Frank Ricci, who addressed the CSB at multiple\nmeetings.\nPetitioners sued the City, Mayor DeStefano, DuBois-Walton, Ude, Burgett, and the two CSB\nmembers who voted against certification. Petitioners also named as a defendant Boise Kimber, a\nNew Haven resident who voiced strong opposition to certifying the results. Those individuals are\nrespondents in this Court. Petitioners filed suit under Rev. Stat. \xc2\xa7\xc2\xa7 1979 and 1980, 42 U. S. C. \xc2\xa7\xc2\xa7\n1983 and 1985, alleging that respondents, by arguing or voting against certifying the results,\nviolated and conspired to violate the Equal Protection Clause of the Fourteenth Amendment .\nPetitioners also filed timely charges of discrimination with the Equal Employment Opportunity\nCommission (EEOC); upon the EEOC\xe2\x80\x99s issuing right-to-sue letters, petitioners amended their\ncomplaint to assert that the City violated the disparate-treatment prohibition contained in Title VII\nof the Civil Rights Act of 1964, as amended. See 42 U. S. C. \xc2\xa7\xc2\xa7 2000e\xe2\x80\x932(a).\nII\nPetitioners raise a statutory claim, under the disparate-treatment prohibition of Title VII, and a\nconstitutional claim, under the Equal Protection Clause of the Fourteenth Amendment . A decision\nfor petitioners on their statutory claim would provide the relief sought, so we consider it first. See\nAtkins v. Parker, 472 U. S. 115, 123 (1985) ; Escambia County v. McMillan, 466 U. S. 48, 51\n(1984) (per curiam) (\xe2\x80\x9c[N]ormally the Court will not decide a constitutional question if there is\nsome other ground upon which to dispose of the case\xe2\x80\x9d).\nOur analysis begins with this premise: The City\xe2\x80\x99s actions would violate the disparate-treatment\nprohibition of Title VII absent some valid defense. All the evidence demonstrates that the City\nchose not to certify the examination results because of the statistical disparity based on race\xe2\x80\x94i.e.,\nhow minority candidates had performed when compared to white candidates. As the District Court\nput it, the City rejected the test results because \xe2\x80\x9ctoo many whites and not enough minorities would\nbe promoted were the lists to be certified.\xe2\x80\x9d 554 F. Supp. 2d, at 152; see also ibid. (respondents\xe2\x80\x99\n\xe2\x80\x9cown arguments \xe2\x80\xa6 show that the City\xe2\x80\x99s reasons for advocating non-certification were related to\nthe racial distribution of the results\xe2\x80\x9d). Without some other justification, this express, race-based\ndecision-making violates Title VII\xe2\x80\x99s command that employers cannot take adverse employment\nactions because of an individual\xe2\x80\x99s race. See \xc2\xa72000e\xe2\x80\x932(a)(1).\n187\n\n\x0cFor the foregoing reasons, we adopt the strong-basis-in-evidence standard as a matter of statutory\nconstruction to resolve any conflict between the disparate-treatment and disparate-impact\nprovisions of Title VII\xe2\x80\xa6\n\xe2\x80\xa6.The City argues that, even under the strong-basis-in-evidence standard, its decision to discard\nthe examination results was permissible under Title VII. That is incorrect. Even if respondents\nwere motivated as a subjective matter by a desire to avoid committing disparate-impact\ndiscrimination, the record makes clear there is no support for the conclusion that respondents had\nan objective, strong basis in evidence to find the tests inadequate, with some consequent disparateimpact liability in violation of Title VII.\nThe racial adverse impact here was significant, and petitioners do not dispute that the City was\nfaced with a prima facie case of disparate-impact liability. On the captain exam, the pass rate for\nwhite candidates was 64 percent but was 37.5 percent for both black and Hispanic candidates. On\nthe lieutenant exam, the pass rate for white candidates was 58.1 percent; for black candidates, 31.6\npercent; and for Hispanic candidates, 20 percent. The pass rates of minorities, which were\napproximately one-half the pass rates for white candidates, fall well below the 80-percent standard\nset by the EEOC to implement the disparate-impact provision of Title VII. See 29 CFR \xc2\xa7 1607.4(D)\n(2008) (selection rate that is less than 80 percent \xe2\x80\x9cof the rate for the group with the highest rate\nwill generally be regarded by the Federal enforcement agencies as evidence of adverse impact\xe2\x80\x9d);\nWatson, 487 U. S., at 995\xe2\x80\x93996, n. 3 (plurality opinion) (EEOC\xe2\x80\x99s 80-percent standard is \xe2\x80\x9ca rule of\nthumb for the courts\xe2\x80\x9d). Based on how the passing candidates ranked and an application of the \xe2\x80\x9crule\nof three,\xe2\x80\x9d certifying the examinations would have meant that the City could not have considered\nblack candidates for any of the then-vacant lieutenant or captain positions.\nBased on the degree of adverse impact reflected in the results, respondents were compelled to take\na hard look at the examinations to determine whether certifying the results would have had an\nimpermissible disparate impact. The problem for respondents is that a prima facie case of\ndisparate-impact liability\xe2\x80\x94essentially, a threshold showing of a significant statistical disparity,\nConnecticut v. Teal, 457 U. S. 440, 446 (1982) , and nothing more\xe2\x80\x94is far from a strong basis in\nevidence that the City would have been liable under Title VII had it certified the results. That is\nbecause the City could be liable for disparate-impact discrimination only if the examinations were\nnot job related and consistent with business necessity, or if there existed an equally valid, lessdiscriminatory alternative that served the City\xe2\x80\x99s needs but that the City refused to adopt. \xc2\xa72000e\xe2\x80\x93\n2(k)(1)(A), (C). We conclude there is no strong basis in evidence to establish that the test was\ndeficient in either of these respects\xe2\x80\xa6.\n\xe2\x80\xa6On the record before us, there is no genuine dispute that the City lacked a strong basis in\nevidence to believe it would face disparate-impact liability if it certified the examination results.\nIn other words, there is no evidence\xe2\x80\x94let alone the required strong basis in evidence\xe2\x80\x94that the tests\nwere flawed because they were not job-related or because other, equally valid and less\ndiscriminatory tests were available to the City. Fear of litigation alone cannot justify an employer\xe2\x80\x99s\nreliance on race to the detriment of individuals who passed the examinations and qualified for\npromotions. The City\xe2\x80\x99s discarding the test results was impermissible under Title VII, and summary\njudgment is appropriate for petitioners on their disparate-treatment claim.\n188\n\n\x0cThe record in this litigation documents a process that, at the outset, had the potential to produce a\ntesting procedure that was true to the promise of Title VII: No individual should face workplace\ndiscrimination based on race. Respondents thought about promotion qualifications and relevant\nexperience in neutral ways. They were careful to ensure broad racial participation in the design of\nthe test itself and its administration. As we have discussed at length, the process was open and\nfair\xe2\x80\xa6\xe2\x80\xa6\nPetitioners are entitled to summary judgment on their Title VII claim, and we therefore need not\ndecide the underlying constitutional question. The judgment of the Court of Appeals is reversed,\nand the cases are remanded for further proceedings consistent with this opinion.\nIt is so ordered.\n\nBONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ):\nThere are situations where employment discrimination is allowable under both federal and NYS\nlaw. An employer can discriminate if the employer establishes a lawful job-related reason for the\ndiscrimination. This is called a bona fide occupational qualification or BFOQ.\nSo how does BFOQ work? Here are some examples found by the courts as acceptable reasons to\ndiscriminate in hiring:\n\xe2\x80\xa2\n\nMandatory retirement age requirements were allowed for airline pilots because safety was\nthe primary concern and airlines could show that older pilots were significantly less safe\nonce they reached a certain age.\n\n\xe2\x80\xa2\n\nMale clothing designers were allowed to legally advertise for male models only, since\nfemale models wouldn\'t be able to model men\'s clothing as intended.\n\n\xe2\x80\xa2\n\nChurches were allowed to legally hire only members of their own church and faith and\nreject clergy from other religions.\n\n\xe2\x80\xa2\n\nAn airline was allowed to hire only pilots of a certain religious background. Why? Because\none of the countries that the airline flew over prohibited, under punishment of death, the\npresence of people outside of a certain religion.\n\nTitle VII permits discrimination on the basis of "religion, sex, or national origin in those instances\nwhere religion, sex, or national origin is a bona fide occupational qualification reasonably\nnecessary to the normal operation of the particular business or enterprise." This exception has also\nbeen extended to discrimination based on age through the Age Discrimination in Employment Act\n(ADEA). This exception does not apply to discrimination based on race. NYS has also adopted\nthe federal rule that race cannot be a justification for BFOQ discrimination.\n\n189\n\n\x0cSo, what if a role in movie or play calls for a black male or female actress? Can a director\ndiscriminate in hiring an actor to play the role by excluding white actors? The answer is no. Title\nVII and the NYS\xe2\x80\x99s HRL make so exception for such situations. However, a director can choose an\nactor based on the actor\xe2\x80\x99s physical characteristics.\nDEFINITION OF A DISABILITY UNDER THE ADA: The EEOC\xe2\x80\x99s ADA: Questions and\nAnswers page on its website states the following regarding its interpretation of the ADA\xe2\x80\x99s\ndefinition of an individual with a disability.\nQuestion. Who is a "qualified individual with a disability?"\nAnswer. A qualified individual with a disability is a person who meets legitimate skill,\nexperience, education, or other requirements of an employment position that he or she\nholds or seeks, and who can perform the "essential functions" of the position with or\nwithout reasonable accommodation. Requiring the ability to perform "essential" functions\nassures that an individual will not be considered unqualified simply because of inability to\nperform marginal or incidental job functions. If the individual is qualified to perform\nessential job functions except for limitations caused by a disability, the employer must\nconsider whether the individual could perform these functions with a reasonable\naccommodation. If a written job description has been prepared in advance of advertising\nor interviewing applicants for a job, this will be considered as evidence, although not\nnecessarily conclusive evidence, of the essential functions of the job.\nREASONABLE ACCOMODATION: The law requires that an employer must make\n\xe2\x80\x9creasonable accommodations\xe2\x80\x9d for those that are disabled. The EEOC\xe2\x80\x99s ADA: Questions and\nAnswers page on its website states the following regarding what a reasonable accommodation and\nwhat actions is constitute such.\nQuestion. What is "reasonable accommodation?"\nAnswer. Reasonable accommodation is a modification or an adjustment to a job or the\nwork environment that will enable a qualified applicant or employee with a disability to\nparticipate in the application process or to perform essential job functions. Reasonable\naccommodation also includes adjustments to assure that a qualified individual with a\ndisability has rights and privileges in employment equal to those of nondisabled employees.\nQuestion. What kinds of actions are required to reasonably accommodate applicants and\nemployees?\nAnswer. Examples of reasonable accommodation include making existing facilities used\nby employees readily accessible to and usable by an individual with a disability;\nrestructuring a job; modifying work schedules; acquiring or modifying equipment;\nproviding qualified readers or interpreters; or appropriately modifying examinations,\ntraining, or other programs. Reasonable accommodation also may include reassigning a\ncurrent employee to a vacant position for which the individual is qualified, if the person\nbecomes disabled and is unable to do the original job. However, there is no obligation to\n190\n\n\x0cfind a position for an applicant who is not qualified for the position sought. Employers are\nnot required to lower quality or quantity standards in order to make an accommodation,\nnor are they obligated to provide personal use items such as glasses or hearing aids.\nThe decision as to the appropriate accommodation must be based on the particular facts of\neach case. In selecting the particular type of reasonable accommodation to provide, the\nprincipal test is that of effectiveness, i.e., whether the accommodation will enable the\nperson with a disability to do the job in question.\nOf course, what is reasonable is a subjective question. Technology is rapidly changing what is\npossible and to some extent, what is reasonable. What may have seemed extraordinary 20 years\nago is now very much the norm and expected. It is rare to find a public bathroom that does not\nhave wheelchair assessable stalls. Building entry ramps and closer parking spaces are just part of\nour culture. The law has made much of this a requirement. With computers that work on voice\ncommands and robotics everywhere, what was once impossible is now rapidly becoming\nreasonable.\nThe meaning of \xe2\x80\x9creasonable accommodations\xe2\x80\x9d depends on the factual context. Take for example\nthe situation of former professional golfer Casey Martin. Due to Casey Martin\xe2\x80\x99s degenerative leg\ncondition, he could not walk the course while participating in PGA tournaments and requested the\nuse of a golf cart. The PGA denied his request claiming that walking was part of the game and that\nthe use of a golf cart would give him an advantage over the other golfers. The case made its way\nto the United States Supreme Court, which applied the ADA to professional sports for the first\ntime. (See Martin v PGA, 532 US 661 (2001) The Court in a 7-2 decision found in favor of Casey\nMartin holding that the use of a golf cart is \xe2\x80\x9ca reasonable modification\xe2\x80\x9d that gives him the access\nto tournaments that the ADA law requires. The Court rejected the PGA\xe2\x80\x99s argument that waiving\nthe usual \xe2\x80\x9cwalk-the-course\xe2\x80\x9d rule for Martin would represent \xe2\x80\x9ca fundamental change in the game.\xe2\x80\x9d\nHEALTH AND DISABILITY DISCRIMINATION AND BFOQ: An employer may not\ndiscriminate against someone with a health problem or disability which does not interfere with a\nperson\xe2\x80\x99s ability to do a job in a reasonable manner. However, if an employer can prove there is a\nphysical or mental requirement for a job that is a bona fide occupational qualification (BFOQ),\nthey can discriminate. Consider the following two cases.\nIn Schor v St. Francis Hospital, 111 AD2d 852 (2d Dept. 1985) a Poughkeepsie NY hospital\nrejected an employment application for a nurse\xe2\x80\x99s position where the duties required heavy lifting.\nThe job applicant admitted that, because of a disability, she was unable to lift more than 15 pounds.\nThe court ruled in favor of the hospital, holding that there was substantial evidence to support a\nDHR ruling of no \xe2\x80\x9cprobable cause\xe2\x80\x9d to believe that the hospital acted in a legally impermissible\nmanner.\nIn DHR ex rel McDermott v. Xerox Corp., 102 AD2d 543 (4th Dept, 1984), Xerox Corporation in\nRochester, NY refused to hire a person whose disability was described as \xe2\x80\x9cactive gross obesity.\xe2\x80\x9d\nThe court held that Xerox acted unlawfully, in violation of HRL Section 296(1), giving rise to the\nrule that \xe2\x80\x9cweight is protected.\xe2\x80\x9d\n\n191\n\n\x0cMEDICAL AND MENTAL EXAMINATIONS: A medical examination may be required of\nan employee or prospective employee, so long as the medical examination is job-related.\nEmployers may require all employees to have annual job-related medical examinations, and/or\nmay require medical examinations upon the happening of a job-related accident.\nIt is lawful for an employee to be terminated, if a medical report discloses that the employee is\nunable to perform his/her assigned tasks in a \xe2\x80\x9csubstantial and reasonable manner,\xe2\x80\x9d and that the\nemployee\xe2\x80\x99s condition is \xe2\x80\x9cnot temporary and is substantial.\xe2\x80\x9d The burden of proof is on an employee\nto prove that, although disabled, the employee can perform the duties required of the job in a\nreasonable manner.\nEmployers are also allowed to randomly test employees for drug use as long as the policy is in\nwriting. If an employee tests positive for an illegal substance, the employer is within its legal rights\nto terminate the employee. Employees who refuse to take a drug test can also be fired.\nTERMINATION BASED ON DISABILITY: The American with Disabilities Act (ADA) does\nnot protect employees who miss work due to their disability, even if the disability occurs while on\nthe job. The bottom line is that if an employee cannot do their job in a reasonable manner, they\ncan be terminated.\nSUBSTANCE ABUSE AS A DISABILITY: NYS\xe2\x80\x99 HRL Section 296 protects rehabilitating\nand/or recovering alcoholics and drug abusers. However, it does not protect substance abusers who\ndo not seek treatment for their substance abuse condition. Such is the situation in Burka v NYC\nTransit Authority, 680 F Supp 590 (1988, SD NY). A federal court held that a NYC Transit police\nofficer was properly dismissed from the force when he refused to acknowledge and accept\ntreatment for alcoholism. The court held that it \xe2\x80\x9cwas reasonable to conclude that the long-term\neffects of the police officer\xe2\x80\x99s alcoholism would result in a diminished capacity to perform police\nfunctions and exercise judgment required of police officers.\xe2\x80\x9d\nPREGANCY DISCRIMINATION: The EEOC\xe2\x80\x99s Pregnancy Discrimination page on its website\nstates the following regarding pregnancy discrimination.\nPregnancy Discrimination\nPregnancy discrimination involves treating a woman (an applicant or employee)\nunfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy\nor childbirth.\nPregnancy Discrimination & Work Situations\nThe Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when\nit comes to any aspect of employment, including hiring, firing, pay, job assignments,\npromotions, layoff, training, fringe benefits, such as leave and health insurance, and any\nother term or condition of employment.\nPregnancy, Maternity & Parental Leave\n\n192\n\n\x0cUnder the PDA, an employer that allows temporarily disabled employees to take\ndisability leave or leave without pay, must allow an employee who is temporarily\ndisabled due to pregnancy to do the same.\nAn employer may not single out pregnancy-related conditions for special procedures to\ndetermine an employee\'s ability to work. However, if an employer requires its employees\nto submit a doctor\'s statement concerning their ability to work before granting leave or\npaying sick benefits, the employer may require employees affected by pregnancy-related\nconditions to submit such statements.\nFurther, under the Family and Medical Leave Act (FMLA) of 1993, a new parent\n(including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or\npaid if the employee has earned or accrued it) that may be used for care of the new child.\nTo be eligible, the employee must have worked for the employer for 12 months prior to\ntaking the leave and the employer must have a specified number of employees.\n(While the above mentioned EEOC\xe2\x80\x99s page regarding pregnancy does not state this, FMLA also\napplies to the placement with the employee of a child for adoption or foster care, care for an\nimmediate family member (spouse, child, or parent) with a serious health condition, or medical\nleave when the employee is unable to work because of a serious health condition.)\nIn 2006, a UPS driver Peggy Young became pregnant with her third child. Based on her doctor\xe2\x80\x99s\nrecommendation, she requested lighter-duty work. UPS refused the request and instead put her on\nunpaid leave. Young sued the company contending that the company discriminated against her\nbecause she was pregnant. She based her claim on the fact that UPS offered accommodations to\nnon-pregnant employees with similar doctor recommendations, such as workers who were injured\non the job.\nTwo lower courts disagreed. Both courts found that UPS was not required to offer the\naccommodation to someone because of their pregnancy and dismissed the case. The Supreme\nCourt found differently, and in a 6-3 decision, the court reversed the lower court ruling and\nremanding the case back to the lower court. While it did not decide whether Young was\ndiscriminated against or not, it set forth the standard that courts should use in determining these\ntypes of cases.\nThe standard is that a plaintiff who makes a claim that she is being discriminated against because\nof her pregnancy has the initial burden of establishing a prima facie case of discrimination. If the\nplaintiff carries that burden, the employer has the opportunity to articulate some legitimate, nondiscriminatory reason for the difference in treatment of a pregnant employee over a non-pregnant\nemployee. If the employer articulates such a reason, the plaintiff then has an opportunity to prove\nby a preponderance of the evidence that the reason is not true and a pretext for discrimination.\nIt should be noted that even before UPS appeared before the U.S. Supreme Court, it had already\nchanged its pregnancy accommodation policy and began treating pregnancy accommodations the\nsame as other disability accommodations. It should also be noted that after the U.S. Supreme Court\ndecision, Peggy Young and United Parcel Service settled this case.\n193\n\n\x0cYOUNG v. UNITED PARCEL SERVICE, INC.,\nSUPREME COURT OF THE UNITED STATES\nYOUNG v. UNITED PARCEL SERVICE, INC.,\n575 U. S. ____ (2015)\n(Case Syllabus edited by the Author)\nThe Pregnancy Discrimination Act added new language to the definitions subsection of Title\nVII of the Civil Rights Act of 1964. The first clause of the Pregnancy Discrimination Act specifies\nthat Title VII\'s prohibition against sex discrimination applies to discrimination "because of or on\nthe basis of pregnancy, childbirth, or related medical conditions." 42 U. S. C \xc2\xa72000e(k). The Act\'s\nsecond clause says that employers must treat "women affected by pregnancy . . . the same for all\nemployment-related purposes . . . as other persons not so affected but similar in their ability or\ninability to work." This case asks the Court to determine how the latter provision applies in the\ncontext of an employer\'s policy that accommodates many, but not all, workers with nonpregnancyrelated disabilities.\nPetitioner Young was a part-time driver for respondent United Parcel Service (UPS). When\nshe became pregnant, her doctor advised her that she should not lift more than 20 pounds. UPS,\nhowever, required drivers like Young to be able to lift up to 70 pounds. UPS told Young that she\ncould not work while under a lifting restriction. Young subsequently filed this federal lawsuit,\nclaiming that UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting\nrestriction. She brought only a disparate-treatment claim of discrimination, which a plaintiff can\nprove either by direct evidence that a workplace policy, practice, or decision relies expressly on a\nprotected characteristic, or by using the burden-shifting framework set forth in McDonnell\nDouglas Corp. v. Green, 411 U. S. 792. Texas Dept. of Community Affairs v. Burdine, 450 U. S.\n248, 253.\nAfter discovery, UPS sought summary judgment. In reply, Young presented several\nfavorable facts that she believed she could prove. In particular, she pointed to UPS policies that\naccommodated workers who were injured on the job, had disabilities covered by the Americans\nwith Disabilities Act of 1990 (ADA), or had lost Department of Transportation (DOT)\ncertifications. Pursuant to these policies, Young contended, UPS had accommodated several\nindividuals whose disabilities created work restrictions similar to hers. She argued that these\npolicies showed that UPS discriminated against its pregnant employees because it had a light-dutyfor-injury policy for numerous "other persons," but not for pregnant workers. UPS responded that,\nsince Young did not fall within the on-the-job injury, ADA, or DOT categories, it had not\ndiscriminated against Young on the basis of pregnancy, but had treated her just as it treated all\n"other" relevant "persons."\nThe District Court granted UPS summary judgment, concluding, inter alia, that Young could\nnot make out a prima facie case of discrimination under McDonnell Douglas. The court found that\nthose with whom Young had compared herself--those falling within the on-the-job, DOT, or ADA\n\n194\n\n\x0ccategories--were too different to qualify as "similarly situated comparator[s]." The Fourth Circuit\naffirmed.\nHeld:\n1. An individual pregnant worker who seeks to show disparate treatment through indirect\nevidence may do so through application of the McDonnell Douglas framework.\n(a) The parties\' interpretations of the Pregnancy Discrimination Act\'s second clause are\nunpersuasive.\n(i) Young claims that as long as "an employer accommodates only a subset of workers\nwith disabling conditions," "pregnant workers who are similar in the ability to work [must] receive\nthe same treatment even if still other nonpregnant workers do not receive accommodations." Her\nreading proves too much. The Court doubts that Congress intended to grant pregnant workers an\nunconditional "most-favored-nation" status, such that employers who provide one or two workers\nwith an accommodation must provide similar accommodations to all pregnant workers,\nirrespective of any other criteria. After all, the second clause of the Act, when referring to\nnonpregnant persons with similar disabilities, uses the open-ended term "other persons." It does\nnot say that the employer must treat pregnant employees the "same" as "any other persons" who\nare similar in their ability or inability to work, nor does it specify the particular "other persons"\nCongress had in mind as appropriate comparators for pregnant workers. Moreover, disparatetreatment law normally allows an employer to implement policies that are not intended to harm\nmembers of a protected class, even if their implementation sometimes harms those members, as\nlong as the employer has a legitimate, nondiscriminatory, nonpretextual reason for doing so. See,\ne.g., Burdine, supra, at 252-258. There is no reason to think Congress intended its language in the\nPregnancy Discrimination Act to deviate from that approach.\n(ii) The Solicitor General argues that the Court should give special, if not controlling,\nweight to a 2014 Equal Employment Opportunity Commission guideline concerning the\napplication of Title VII and the ADA to pregnant employees. But that guideline lacks the timing,\n"consistency," and "thoroughness" of "consideration" necessary to "give it power to persuade."\nSkidmore v. Swift & Co., 323 U. S. 134, 140. The guideline was promulgated after certiorari was\ngranted here; it takes a position on which previous EEOC guidelines were silent; it is inconsistent\nwith positions long advocated by the Government; and the EEOC does not explain the basis for its\nlatest guidance.\n(iii) UPS claims that the Act\'s second clause simply defines sex discrimination to include\npregnancy discrimination. But that cannot be right, as the first clause of the Act accomplishes that\nobjective. Reading the Act\'s second clause as UPS proposes would thus render the first clause\nsuperfluous. It would also fail to carry out a key congressional objective in passing the Act. The\nAct was intended to overturn the holding and the reasoning of General Elec. Co. v. Gilbert, 429\nU. S. 125, which upheld against a Title VII challenge a company plan that provided\nnonoccupational sickness and accident benefits to all employees but did not provide disabilitybenefit payments for any absence due to pregnancy.\n(b) An individual pregnant worker who seeks to show disparate treatment may make out a\nprima facie case under the McDonnell Douglas framework by showing that she belongs to the\nprotected class, that she sought accommodation, that the employer did not accommodate her, and\nthat the employer did accommodate others "similar in their ability or inability to work." The\nemployer may then seek to justify its refusal to accommodate the plaintiff by relying on\n195\n\n\x0c"legitimate, nondiscriminatory" reasons for denying accommodation. That reason normally cannot\nconsist simply of a claim that it is more expensive or less convenient to add pregnant women to\nthe category of those whom the employer accommodates. If the employer offers a "legitimate,\nnondiscriminatory" reason, the plaintiff may show that it is in fact pretextual. The plaintiff may\nreach a jury on this issue by providing sufficient evidence that the employer\'s policies impose a\nsignificant burden on pregnant workers, and that the employer\'s "legitimate, nondiscriminatory"\nreasons are not sufficiently strong to justify the burden, but rather--when considered along with\nthe burden imposed--give rise to an inference of intentional discrimination. The plaintiff can create\na genuine issue of material fact as to whether a significant burden exists by providing evidence\nthat the employer accommodates a large percentage of nonpregnant workers while failing to\naccommodate a large percentage of pregnant workers. This approach is consistent with the\nlongstanding rule that a plaintiff can use circumstantial proof to rebut an employer\'s apparently\nlegitimate, nondiscriminatory reasons, see Burdine, supra, at 255, n. 10, and with Congress\' intent\nto overrule Gilbert.\n2. Under this interpretation of the Act, the Fourth Circuit\'s judgment must be vacated.\nSummary judgment is appropriate when there is "no genuine dispute as to any material fact." Fed.\nRule Civ. Proc. 56(a). The record here shows that Young created a genuine dispute as to whether\nUPS provided more favorable treatment to at least some employees whose situation cannot\nreasonably be distinguished from hers. It is left to the Fourth Circuit to determine on remand\nwhether Young also created a genuine issue of material fact as to whether UPS\' reasons for having\ntreated Young less favorably than these other nonpregnant employees were pretextual.\n707 F. 3d 437, vacated and remanded.\nBREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG,\nSOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in the judgment.\nSCALIA, J., filed a dissenting opinion, in which KENNEDY and THOMAS, JJ., joined.\nKENNEDY, J., filed a dissenting opinion.\nSEXUAL HARRASSMENT: Sexual harassment is a form of sexual discrimination. It is a\nviolation of both NYS\xe2\x80\x99 HRL and Title VII of the federal Civil Rights Act of 1964. The EEOC\ndefines sexual harassment as follows:\n\xe2\x80\x9cUnwelcome sexual advances, requests for sexual favors, and other verbal or\nphysical conduct of a sexual nature constitute sexual harassment when this conduct\nexplicitly or implicitly affects an individual\'s employment, unreasonably interferes\nwith an individual\'s work performance, or creates an intimidating, hostile, or\noffensive work environment.\xe2\x80\x9d\nIn employment situations, there are two categories of sexual harassment, quid pro quo or a hostile\nwork environment. They often occur together.\n#MeToo!: Any discussion regarding sexually harassment in 2018 should include the #MeToo!\nmovement. It started with famous Hollywood directors like movie mogul Harvey Weinstein, actors\nlike Bill Cosby, and news personalities like Bill O\xe2\x80\x99Reilly being accused by women in their\nrespective industries of decades of sexual harassment, it quickly grew and brought to light the\nprevalence of sexual harassment of those not so famous regular people who are also victims. The\n196\n\n\x0cmovement is now a national in scope and changing the way people think about the treatment of\nwomen in and out of the workplace.\nIn 2018, NYS expanded its sexual harassment laws, apparently to some degree in response to the\n#MeToo! movement. Here are some of the highlights of the changes to the law in NYS.\n\xe2\x80\xa2\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\nNon-Employee Liability: The Human Rights Law prohibition against sexual harassment in\nthe workplace now applies to nonemployees, such as independent contractors, consultants,\nvendors, subcontractors, and persons providing services pursuant to a contract.\nMandatory Arbitration: CPLR Section 7515 was added so that employers in NYS are now\nprohibited from requiring employees to sign agreements that require mandatory binding\narbitration of claims relating to sexual harassment. Such clauses are null and void as a\nmatter of law.\nNon-Disclosure Settlement: GOB \xc2\xa7 5-336 and CPLR Section 5003-b were added so\nemployers in NYS will now be prohibited from requiring nondisclosure clauses in any\nsettlement, agreement, or other resolution of any claim, where \xe2\x80\x9cthe factual foundation for\nwhich involves sexual harassment\xe2\x80\x9d unless the condition of confidentiality is the\ncomplainant or plaintiff\xe2\x80\x99s preference.\n\nIt should be noted that sexual harassment should not be confused with sexual assaults and rape.\nSexual assaults and rape are crimes. The perpetrators are charged and prosecuted by the state.\nSexual harassment in the workplace in and of itself is not a crime but a civil case. Individuals who\ncommit sexual crimes can also be involved in sexual harassment.\nQUID PRO QUO SEXUAL HARRASSMENT: When a manager or other authority figure of\nthe employer offers that he or she will give the employee something like a raise or a promotion, or\nnot fire an employee or reprimand an employee for some type of sexual favor, it is called quid pro\nquo sexual harassment. An employer can be responsible even it this act only occurs once. It also\napplies to job applicants that are the subject of this kind of harassment if the hiring decision was\nbased on the acceptance or rejection of the sexual advances.\nHOSTILE WORK ENVIRONMENT SEXUAL HARRASSMENT: Employers can be held\nliable for their employees\xe2\x80\x99 unwelcomed sexual harassment of another employee when it is so\nsevere that it creates what is called a hostile work environment in violation of both Title VII and\nthe HRL. Courts often consider the following questions in analyzing a hostile environment\nharassment claim.\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nWas the conduct verbal, physical, or both?\nWhat was the frequency of the conduct?\nWas the conduct hostile or patently offensive?\nWas the alleged harasser a co-worker or supervisor?\nDid others joined in perpetrating the harassment?\nWas the harassment directed at more than one individual or was the victim singled out?\n\n197\n\n\x0cThe EEOC Enforcement Guidance dated March 19, 1990 is particularly helpful in working through\nwhat is and is not sexual harassment in the workplace. The Enforcement Guidance states in part\nthe following regarding a hostile work environment:\nSexual harassment is \xe2\x80\x9cunwelcome . . . verbal or physical conduct of a sexual nature\n. . ..\xe2\x80\x9d 29 C.F.R. \xc2\xa7 1604.11(a). Because sexual attraction may often play a role in the\nday-to-day social exchange between employees, \xe2\x80\x9cthe distinction between invited,\nuninvited-but-welcome, offensive-but-tolerated, and flatly rejected\xe2\x80\x9d sexual\nadvances may well be difficult to discern. Barnes v. Costle, 561 F.2d 983, 999, 14\nEPD 7755 (D.C. Cir. 1977) (MacKinnon J., concurring). But this distinction is\nessential because sexual conduct becomes unlawful only when it is unwelcome.\nThe Eleventh Circuit provided a general definition of \xe2\x80\x9cunwelcome conduct\xe2\x80\x9d in\nHenson v. City of Dundee, 682 F.2d at 903: the challenged conduct must be\nunwelcome \xe2\x80\x9cin the sense that the employee did not solicit or incite it, and in the\nsense that the employee regarded the conduct as undesirable or offensive.\xe2\x80\x9d\nIn determining whether unwelcome sexual conduct rises to the level of a \xe2\x80\x9chostile\nenvironment\xe2\x80\x9d in violation of Title VII, the central inquiry is whether the conduct\n\xe2\x80\x9cunreasonably interfer[es] with an individual\xe2\x80\x99s work performance\xe2\x80\x9d or creates \xe2\x80\x9can\nintimidating, hostile, or offensive working environment.\xe2\x80\x9d 29 C.F.R. \xc2\xa7\n1604.11(a)(3). Thus, sexual flirtation or innuendo, even vulgar language that is\ntrivial or merely annoying, would probably not establish a hostile environment.\nIn determining whether harassment is sufficiently severe or pervasive to create a\nhostile environment, the harasser\xe2\x80\x99s conduct should be evaluated from the objective\nstandpoint of a \xe2\x80\x9creasonable person.\xe2\x80\x9d\nWhen an employer receives a complaint or otherwise learns of alleged sexual\nharassment in the workplace, the employer should investigate promptly and\nthoroughly. The employer should take immediate and appropriate corrective action\nby doing whatever is necessary to end the harassment, make the victim whole by\nrestoring lost employment benefits or opportunities, and prevent the misconduct\nfrom recurring. Disciplinary action against the offending supervisor or employee,\nranging from reprimand to discharge, may be necessary. Generally, the corrective\naction should reflect the severity of the conduct.\nIt should be noted that if a superior is involved in creating the hostile work environment, the\nemployer will be liable. If the harassment is committed by a coworker the employer is liable if the\nemployer knew or should have known about the harassment, unless the employer took immediate\ncorrective action to remedy the situation.\nThe following U.S. Supreme Court cases provide some guidance on the Court\xe2\x80\x99s interpretation of\nthe law regarding sexual harassment in the workplace.\n\n198\n\n\x0cMERITOR SAVINGS BANK v. VINSON\nSUPREME COURT OF THE UNITED STATES\nMERITOR SAVINGS BANK v. VINSON\n477 U.S. 57 (1986)\n(Case Syllabus edited by the Author)\nRespondent former employee of petitioner bank brought an action against the bank and her\nsupervisor at the bank, claiming that during her employment at the bank she had been subjected to\nsexual harassment by the supervisor in violation of Title VII of the Civil Rights Act of 1964, and\nseeking injunctive relief and damages. At the trial, the parties presented conflicting testimony\nabout the existence of a sexual relationship between respondent and the supervisor.\nThe District Court denied relief without resolving the conflicting testimony, holding that if\nrespondent and the supervisor did have a sexual relationship, it was voluntary and had nothing to\ndo with her continued employment at the bank, and that therefore respondent was not the victim\nof sexual harassment. The court then went on to hold that since the bank was without notice, it\ncould not be held liable for the supervisor\'s alleged sexual harassment.\nThe Court of Appeals reversed and remanded. The Court of Appeals noted that a violation of Title\nVII may be predicated on either of two types of sexual harassment: (1) harassment that involves\nthe conditioning of employment benefits on sexual favors, and (2) harassment that, while not\naffecting economic benefits, creates a hostile or offensive working environment. The Court of\nAppeals held that since the grievance here was of the second type and the District Court had not\nconsidered whether a violation of this type had occurred, a remand was necessary. The Court of\nAppeals further held that the need for a remand was not obviated by the fact that the District Court\nhad found that any sexual relationship between respondent and the supervisor was a voluntary one,\na finding that might have been based on testimony about respondent\'s "dress and personal\nfantasies" that "had no place in the litigation." As to the bank\'s liability, the Court of Appeals held\nthat an employer is absolutely liable for sexual harassment by supervisory personnel, whether or\nnot the employer knew or should have known about it.\nHeld:\n1. A claim of "hostile environment" sexual harassment is a form of sex discrimination that is\nactionable under Title VII.\n(a) The language of Title VII is not limited to "economic" or "tangible" discrimination. Equal\nEmployment Opportunity Commission Guidelines fully support the view that sexual harassment\nleading to non-economic injury can violate Title VII. Here, respondent\'s allegations were sufficient\nto state a claim for "hostile environment" sexual harassment.\n(b) The District Court\'s findings were insufficient to dispose of respondent\'s "hostile environment"\nclaim. The District Court apparently erroneously believed that a sexual harassment claim will not\n199\n\n\x0clie absent an economic effect on the complainant\'s employment, and erroneously focused on the\n"voluntariness" of respondent\'s participation in the claimed sexual episodes. The correct inquiry is\nwhether respondent by her conduct indicated that the alleged sexual advances were unwelcome,\nnot whether her participation in them was voluntary.\n(c) The District Court did not err in admitting evidence of respondent\'s sexually provocative speech\nand dress. While "voluntariness" in the sense of consent is no defense to a sexual harassment claim,\nit does not follow that such evidence is irrelevant as a matter of law in determining whether the\ncomplainant found particular sexual advances unwelcome.\n2. The Court of Appeals erred in concluding that employers are always automatically liable for\nsexual harassment by their supervisors. While common-law agency principles may not be\ntransferable in all their particulars to Title VII, Congress\' decision to define "employer" to include\nany "agent" of an employer evinces an intent to place some limits on the acts of employees for\nwhich employers under Title VII are to be held responsible. In this case, however, the mere\nexistence of a grievance procedure in the bank and the bank\'s policy against discrimination,\ncoupled with respondent\'s failure to invoke that procedure, do not necessarily insulate the bank\nfrom liability.\n243 U.S. App. D.C. 323, 753 F.2d 141, affirmed and remanded.\nREHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE,\nPOWELL, STEVENS, and O\'CONNOR, JJ., joined. STEVENS, J., filed a concurring opinion,\nMARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN,\nBLACKMUN, and STEVENS, JJ., joined.\n\nHARRIS v. FORKLIFT SYSTEMS, INC.\nSUPREME COURT OF THE UNITED STATES\nHARRIS v. FORKLIFT SYSTEMS, INC.\n510 U.S. 17 (1993)\n(Case Syllabus edited by the Author)\nPetitioner Harris sued her former employer, respondent Forklift Systems, Inc., claiming that the\nconduct of Forklift\'s president toward her constituted "abusive work environment" harassment\nbecause of her gender in violation of Title VII of the Civil Rights Act of 1964. Charles Hardy was\nForklift\'s president.\nHardy told Harris on several occasions, in the presence of other employees, "You\'re a woman,\nwhat do you know," and "We need a man as the rental manager"; at least once, he told her she was\n"a dumb ass woman." Again, in front of others, he suggested that the two of them "go to the\nHoliday Inn to negotiate [Harris\'] raise." Hardy occasionally asked Harris and other female\n200\n\n\x0cemployees to get coins from his front pants pocket. He threw objects on the ground in front of\nHarris and other women and asked them to pick the objects up. He made sexual innuendos about\nHarris\' and other women\'s clothing. In mid-August 1987, Harris complained to Hardy about his\nconduct. Hardy said he was surprised that Harris was offended, claimed he was only joking, and\napologized. He also promised he would stop, and based on this assurance Harris stayed on the job.\nBut in early September, Hardy began anew: While Harris was arranging a deal with one of\nForklift\'s customers, he asked her, again in front of other employees, "What did you do, promise\nthe guy . . . some [sex] Saturday night?" On October 1, Harris collected her paycheck and quit.\nDeclaring this to be "a close case," the District Court found, among other things, that Forklift\'s\npresident often insulted Harris because of her gender and often made her the target of unwanted\nsexual innuendos. However, the court also found that while some of Hardy\'s comments offended\nHarris, and would offend a reasonable woman, the comments were not\n"so severe as to be expected to seriously affect [Harris\'] psychological well being.\nA reasonable woman manager under like circumstances would have been offended\nby Hardy, but his conduct would not have risen to the level of interfering with that\nperson\'s work performance. the court concluded that the comments in question did\nnot create an abusive environment because they were not "so severe as to . . .\nseriously affect [Harris\'] psychological well being" or lead her to "suffe[r] injury."\nThe Court of Appeals affirmed.\nHeld:\nTo be actionable as "abusive work environment" harassment, conduct need not "seriously affect\n[an employee\'s] psychological well being" or lead the plaintiff to "suffe[r] injury."\n(a) The applicable standard, here reaffirmed, is stated in Meritor Savings Bank v. Vinson, 477 U.S.\n57: Title VII is violated when the workplace is permeated with discriminatory behavior that is\nsufficiently severe or pervasive to create a discriminatorily hostile or abusive working\nenvironment. This standard requires an objectively hostile or abusive environment-- one that a\nreasonable person would find hostile or abusive--as well as the victim\'s subjective perception that\nthe environment is abusive.\n(b) Whether an environment is "hostile" or "abusive" can be determined only by looking at all the\ncircumstances, which may include the frequency of the discriminatory conduct; its severity;\nwhether it is physically threatening or humiliating, or a mere offensive utterance; and whether it\nunreasonably interferes with an employee\'s work performance. The effect on the employee\'s\npsychological well being is relevant in determining whether the plaintiff actually found the\nenvironment abusive. But while psychological harm, like any other relevant factor, may be taken\ninto account, no single factor is required.\n(c) Reversal and remand are required because the District Court\'s erroneous application of the\nincorrect legal standard may well have influenced its ultimate conclusion that the work\nenvironment was not intimidating or abusive to Harris, especially given that the court found this\nto be a "close case."\n201\n\n\x0c976 F. 2d 733, reversed and remanded.\nO\'Connor, J., delivered the opinion for a unanimous Court. Scalia, J., and Ginsburg, J., filed\nconcurring opinions.\n\nBURLINGTON INDUSTRIES, INC. v. ELLERTH\nSUPREME COURT OF THE UNITED STATES\nBURLINGTON INDUSTRIES, INC. v. ELLERTH\n524 US 742 (1998)\n(Case Syllabus edited by the Author)\nRespondent Kimberly Ellerth quit her job after 15 months as a salesperson in one of petitioner\nBurlington Industries\xe2\x80\x99 many divisions, allegedly because she had been subjected to constant sexual\nharassment by one of her supervisors, Ted Slowik. Slowik was a mid-level manager who had\nauthority to hire and promote employees, subject to higher approval, but was not considered a\npolicy-maker. Against a background of repeated boorish and offensive remarks and gestures\nallegedly made by Slowik, Ellerth places particular emphasis on three incidents where Slowik\xe2\x80\x99s\ncomments could be construed as threats to deny her tangible job benefits. Ellerth refused all of\nSlowik\xe2\x80\x99s advances, yet suffered no tangible retaliation and was, in fact, promoted once. Moreover,\nshe never informed anyone in authority about Slowik\xe2\x80\x99s conduct, despite knowing Burlington had\na policy against sexual harassment. In filing this lawsuit, Ellerth alleged Burlington engaged in\nsexual harassment and forced her constructive discharge, in violation of Title VII of the Civil\nRights Act of 1964, 42 U. S. C. \xc2\xa72000e et seq. The District Court granted Burlington summary\njudgment. The Seventh Circuit en banc reversed in a decision that produced eight separate opinions\nand no consensus for a controlling rationale. Among other things, those opinions focused on\nwhether Ellerth\xe2\x80\x99s claim could be categorized as one of quid pro quo harassment, and on whether\nthe standard for an employer\xe2\x80\x99s liability on such a claim should be vicarious liability or negligence.\nHeld:\nUnder Title VII, an employee who refuses the unwelcome and threatening sexual advances of a\nsupervisor, yet suffers no adverse, tangible job consequences, may recover against the employer\nwithout showing the employer is negligent or otherwise at fault for the supervisor\xe2\x80\x99s actions, but\nthe employer may interpose an affirmative defense.\n(a) The Court assumes an important premise yet to be established: a trier of fact could find in\nSlowik\xe2\x80\x99s remarks numerous threats to retaliate against Ellerth if she denied some sexual liberties.\nThe threats, however, were not carried out. Cases based on carried-out threats are referred to often\nas \xe2\x80\x9cquid pro quo\xe2\x80\x9d cases, as distinct from bothersome attentions or sexual remarks sufficient to\ncreate a \xe2\x80\x9chostile work environment.\xe2\x80\x9d Those two terms do not appear in Title VII, which forbids\nonly \xe2\x80\x9cdiscriminat[ion] against any individual with respect to his \xe2\x80\xa6 terms [or] conditions \xe2\x80\xa6 of\n202\n\n\x0cemployment, because of \xe2\x80\xa6 sex.\xe2\x80\x9d \xc2\xa7 2000e\xe2\x80\x942(a)(1). In Meritor Savings Bank, FSB v. Vinson, 477\nU. S. 57, this Court distinguished between the two concepts, saying both are cognizable under Title\nVII, though a hostile environment claim requires harassment that is severe or pervasive. Meritor\ndid not discuss the distinction for its bearing upon an employer\xe2\x80\x99s liability for discrimination, but\nheld, with no further specifics, that agency principles controlled on this point. Id., at 72.\nNevertheless, in Meritor\xe2\x80\x99s wake, Courts of Appeals held that, if the plaintiff established a quid pro\nquo claim, the employer was subject to vicarious liability. This rule encouraged Title VII plaintiffs\nto state their claims in quid pro quo terms, which in turn put expansive pressure on the definition.\nFor example, the question presented here is phrased as whether Ellerth can state a quid pro quo\nclaim, but the issue of real concern to the parties is whether Burlington has vicarious liability,\nrather than liability limited to its own negligence. This Court nonetheless believes the two terms\nare of limited utility. To the extent they illustrate the distinction between cases involving a carriedout threat and offensive conduct in general, they are relevant when there is a threshold question\nwhether a plaintiff can prove discrimination. Hence, Ellerth\xe2\x80\x99s claim involves only unfulfilled\nthreats, so it is a hostile work environment claim requiring a showing of severe or pervasive\nconduct. This Court accepts the District Court\xe2\x80\x99s finding that Ellerth made such a showing. When\ndiscrimination is thus proved, the factors discussed below, not the categories quid pro quo and\nhostile work environment, control on the issue of vicarious liability.\n(b) In deciding whether an employer has vicarious liability in a case such as this, the Court turns\nto agency law principles, for Title VII defines the term \xe2\x80\x9cemployer\xe2\x80\x9d to include \xe2\x80\x9cagents.\xe2\x80\x9d \xc2\xa72000e(b).\nGiven this express direction, the Court concludes a uniform and predictable standard must be\nestablished as a matter of federal law. The Court relies on the general common law of agency,\nrather than on the law of any particular State. Community for Creative Non-Violence v. Reid, 490\nU. S. 730. The Restatement (Second) of Agency (hereinafter Restatement) is a useful beginning\npoint, although common-law principles may not be wholly transferable to Title VII. See Meritor,\nsupra, at 72.\n(c) A master is subject to liability for the torts of his servants committed while acting in the scope\nof their employment. Restatement \xc2\xa7 219(1). Although such torts generally may be either negligent\nor intentional, sexual harassment under Title VII presupposes intentional conduct. An intentional\ntort is within the scope of employment when actuated, at least in part, by a purpose to serve the\nemployer. Id., \xc2\xa7\xc2\xa7 228(1)(c), 230. Courts of Appeals have held, however, a supervisor acting out\nof gender-based animus or a desire to fulfill sexual urges may be actuated by personal motives\nunrelated and even antithetical to the employer\xe2\x80\x99s objectives. Thus, the general rule is that sexual\nharassment by a supervisor is not conduct within the scope of employment.\n(d) However, scope of employment is not the only basis for employer liability under agency\nprinciples. An employer is subject to liability for the torts of its employees acting outside the scope\nof their employment when, inter alia, the employer itself was negligent or reckless, Restatement \xc2\xa7\n219(2)(b), or the employee purported to act or to speak on behalf of the employer and there was\nreliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the\nagency relation, id., \xc2\xa7 219(2)(d). An employer is negligent, and therefore subject to liability under\n\xc2\xa7 219(2)(b), if it knew or should have known about sexual harassment and failed to stop it.\nNegligence sets a minimum standard for Title VII liability; but Ellerth seeks to invoke the more\nstringent standard of vicarious liability. Section 219(2)(d) makes an employer vicariously liable\n203\n\n\x0cfor sexual harassment by an employee who uses apparent authority (the apparent authority\nstandard), or who was \xe2\x80\x9caided in accomplishing the tort by the existence of the agency relation\xe2\x80\x9d\n(the aided in the agency relation standard).\n(e) As a general rule, apparent authority is relevant where the agent purports to exercise a power\nwhich he or she does not have, as distinct from threatening to misuse actual power. Compare\nRestatement \xc2\xa7\xc2\xa7 6 and 8. Because supervisory harassment cases involve misuse of actual power,\nnot the false impression of its existence, apparent authority analysis is inappropriate. When a party\nseeks to impose vicarious liability based on an agent\xe2\x80\x99s misuse of delegated authority, the\nRestatement\xe2\x80\x99s aided in the agency relation rule provides the appropriate analysis.\n(f) That rule requires the existence of something more than the employment relation itself because,\nin a sense, most workplace tortfeasors, whether supervisors or co-workers, are aided in\naccomplishing their tortious objective by the employment relation: Proximity and regular contact\nafford a captive pool of potential victims. Such an additional aid exists when a supervisor subjects\na subordinate to a significant, tangible employment action, i.e., a significant change in employment\nstatus, such as discharge, demotion, or undesirable reassignment. Every Federal Court of Appeals\nto have considered the question has correctly found vicarious liability in that circumstance. This\nCourt imports the significant, tangible employment action concept for resolution of the vicarious\nliability issue considered here. An employer is therefore subject to vicarious liability for such\nactions. However, where, as here, there is no tangible employment action, it is not obvious the\nagency relationship aids in commission of the tort. Moreover, Meritor holds that agency principles\nconstrain the imposition of employer liability for supervisor harassment. Limiting employer\nliability is also consistent with Title VII\xe2\x80\x99s purpose to the extent it would encourage the creation\nand use of anti-harassment policies and grievance procedures. Thus, in order to accommodate the\nagency principle of vicarious liability for harm caused by misuse of supervisory authority, as well\nas Title VII\xe2\x80\x99s equally basic policies of encouraging forethought by employers and saving action\nby objecting employees, the Court adopts, in this case and in Faragher v. Boca Raton, post, p. ___,\nthe following holding: An employer is subject to vicarious liability to a victimized employee for\nan actionable hostile environment created by a supervisor with immediate (or successively higher)\nauthority over the employee. When no tangible employment action is taken, a defending employer\nmay raise an affirmative defense to liability or damages, subject to proof by a preponderance of\nthe evidence, see Fed. Rule. Civ. Proc. 8(c). The defense comprises two necessary elements: (a)\nthat the employer exercised reasonable care to prevent and correct promptly any sexually harassing\nbehavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any\npreventive or corrective opportunities provided by the employer or to avoid harm otherwise. While\nproof that an employer had promulgated an antiharassment policy with a complaint procedure is\nnot necessary in every instance as a matter of law, the need for a stated policy suitable to the\nemployment circumstances may appropriately be addressed in any case when litigating the first\nelement of the defense. And while proof that an employee failed to fulfill the corresponding\nobligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to\nuse any complaint procedure provided by the employer, a demonstration of such failure will\nnormally suffice to satisfy the employer\xe2\x80\x99s burden under the second element of the defense. No\naffirmative defense is available, however, when the supervisor\xe2\x80\x99s harassment culminates in a\ntangible employment action.\n\n204\n\n\x0c(g) Given the Court\xe2\x80\x99s explanation that the labels quid pro quo and hostile work environment are\nnot controlling for employer-liability purposes, Ellerth should have an adequate opportunity on\nremand to prove she has a claim which would result in vicarious liability. Although she has not\nalleged she suffered a tangible employment action at Slowik\xe2\x80\x99s hands, which would deprive\nBurlington of the affirmative defense, this is not dispositive. In light of the Court\xe2\x80\x99s decision,\nBurlington is still subject to vicarious liability for Slowik\xe2\x80\x99s activity but should have an opportunity\nto assert and prove the affirmative defense.\n123 F. 3d 490, affirmed.\nKennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O\xe2\x80\x99Connor,\nSouter, and Breyer, JJ. joined. Ginsburg, J., filed an opinion concurring in the judgment. Thomas,\nJ., filed a dissenting opinion, in which Scalia, J. joined.\nNON-EMPLOYMENT DISCRIMINATION: In addition to the employment situations, antidiscrimination laws also apply to discrimination in credit, housing, and places of public\naccommodation.\nCREDIT: It is unlawful for a lender to deny credit, because of age (other than to minors), or sex\nor marital status, in making personal or mortgage loans and/or in dealing with credit cards matters\nunder both the federal Equal Credit Opportunity Act, 15 USC Sections 28-39, as well as NYS\xe2\x80\x99\nHRL Section 296-a.\nHOUSING: The federal Fair Housing Amendments Act of 1988, 11 USC Sections 357-358,\nmakes it unlawful to discriminate in housing on the basis of race, color, religion, national origin,\nsex, disability and families with children. New York\xe2\x80\x99s HRL Section 296 subd 5 forbids housing\ndiscrimination on the basis of race, color, religion, national origin, sex, disability, families with\nchildren, age, and marital status.\nIt is unlawful to deny housing to a legally blind, severely handicapped, or mute person, or to evict\nsuch a person, because of a dog or other handicapped aiding pet, unless a public health hazard\ndevelops.\n\xe2\x80\x9cRed lining,\xe2\x80\x9d is also an unlawful practice. This occurs when banks and/or other financial\ninstitutions refuse to make loans to prospective home buyers in certain neighborhoods.\nHowever, it is lawful in NYS to refuse to rent half of a two-family house, or even to rent a room\nin a house, where the landlord/owner lives in the house, based on age, sex, religion, disability,\nmarital status, or the presence of children. Race is not included as a basis for such denial.\nPUBLIC ACCOMODATIONS: Theaters, restaurants, hotels, resorts, and public modes of\ntransportation are considered public accommodations. It is unlawful to discriminate against\npatrons at such places, on the basis of ages, marital status, sex, race, color, national origin,\ndisability, creed, and/or religion.\n\n205\n\n\x0cHowever, claims of religious liberty may override public accommodation laws as the following\nU.S. Supreme Court decision illustrates.\n\nMASTERPIECE CAKESHOP, LTD., ET AL. v. COLORADO CIVIL RIGHTS\nCOMMISSION ET AL.\nSUPREME COURT OF THE UNITED STATES\nMASTERPIECE CAKESHOP, LTD., ET AL. v. COLORADO CIVIL RIGHTS\nCOMMISSION ET AL.\n584 U. S. ____ (2018)\n(Case Syllabus edited by the Author)\nJUSTICE KENNEDY delivered the opinion of the Court.\nMasterpiece Cakeshop, Ltd., is a Colorado bakery owned and operated by Jack Phillips, an expert\nbaker and devout Christian. In 2012 he told a same-sex couple that he would not create a cake for\ntheir wedding celebration because of his religious opposition to same-sex marriages\xe2\x80\x94marriages\nthat Colorado did not then recognize\xe2\x80\x94but that he would sell them other baked goods, e.g., birthday\ncakes. The couple filed a charge with the Colorado Civil Rights Commission (Commission)\npursuant to the Colorado Anti-Discrimination Act (CADA), which prohibits, as relevant here,\ndiscrimination based on sexual orientation in a \xe2\x80\x9cplace of business engaged in any sales to the public\nand any place offering services . . . to the public.\xe2\x80\x9d Under CADA\xe2\x80\x99s administrative review system,\nthe Colorado Civil Rights Division first found probable cause for a violation and referred the case\nto the Commission. The Commission then referred the case for a formal hearing before a state\nAdministrative Law Judge (ALJ), who ruled in the couple\xe2\x80\x99s favor. In so doing, the ALJ rejected\nPhillips\xe2\x80\x99 First Amendment claims: that requiring him to create a cake for a same-sex wedding\nwould violate his right to free speech by compelling him to exercise his artistic talents to express\na message with which he disagreed and would violate his right to the free exercise of religion.\nBoth the Commission and the Colorado Court of Appeals affirmed.\nHeld:\nThe Commission\xe2\x80\x99s actions in this case violated the Free Exercise Clause.\n(a) The laws and the Constitution can, and in some instances must, protect gay persons and gay\ncouples in the exercise of their civil rights, but religious and philosophical objections to gay\nmarriage are protected views and, in some instances, protected forms of expression. See Obergefell\nv. Hodges, 576 U. S. ___, ___. While it is unexceptional that Colorado law can protect gay persons\nin acquiring products and services on the same terms and conditions as are offered to other\nmembers of the public, the law must be applied in a manner that is neutral toward religion. To\nPhillips, his claim that using his artistic skills to make an expressive statement, a wedding\nendorsement in his own voice and of his own creation, has a significant First Amendment speech\ncomponent and implicates his deep and sincere religious beliefs. His dilemma was understandable\nin 2012, which was before Colorado recognized the validity of gay marriages performed in the\nState and before this Court issued United States v. Windsor, 570 U. S. 744, or Obergefell. Given\nthe State\xe2\x80\x99s position at the time, there is some force to Phillips\xe2\x80\x99 argument that he was not\n206\n\n\x0cunreasonable in deeming his decision lawful. State law at the time also afforded storekeepers some\nlatitude to decline to create specific messages they considered offensive. Indeed, while the instant\nenforcement proceedings were pending, the State Civil Rights Division concluded in at least three\ncases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay\npersons or gay marriages. Phillips too was entitled to a neutral and respectful consideration of his\nclaims in all the circumstances of the case.\n(b) That consideration was compromised, however, by the Commission\xe2\x80\x99s treatment of Phillips\xe2\x80\x99\ncase, which showed elements of a clear and impermissible hostility toward the sincere religious\nbeliefs motivating his objection. As the record shows, some of the commissioners at the\nCommission\xe2\x80\x99s formal, public hearings endorsed the view that religious beliefs cannot legitimately\nbe carried into the public sphere or commercial domain, disparaged Phillips\xe2\x80\x99 faith as despicable\nand characterized it as merely rhetorical and compared his invocation of his sincerely held religious\nbeliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor\nwere they mentioned in the later state-court ruling or disavowed in the briefs filed here. The\ncomments thus cast doubt on the fairness and impartiality of the Commission\xe2\x80\x99s adjudication of\nPhillips\xe2\x80\x99 case. Another indication of hostility is the different treatment of Phillips\xe2\x80\x99 case and the\ncases of other bakers with objections to anti-gay messages who prevailed before the Commission.\nThe Commission ruled against Phillips in part on the theory that any message on the requested\nwedding cake would be attributed to the customer, not to the baker. Yet the Division did not\naddress this point in any of the cases involving requests for cakes depicting anti-gay marriage\nsymbolism. The Division also considered that each bakery was willing to sell other products to the\nprospective customers, but the Commission found Phillips\xe2\x80\x99 willingness to do the same irrelevant.\nThe State Court of Cite as: 584 U. S. ____ (2018) Appeals\xe2\x80\x99 brief discussion of this disparity of\ntreatment does not answer Phillips\xe2\x80\x99 concern that the State\xe2\x80\x99s practice was to disfavor the religious\nbasis of his objection.\n(c) For these reasons, the Commission\xe2\x80\x99s treatment of Phillips\xe2\x80\x99 case violated the State\xe2\x80\x99s duty under\nthe First Amendment not to base laws or regulations on hostility to a religion or religious\nviewpoint. The government, consistent with the Constitution\xe2\x80\x99s guarantee of free exercise, cannot\nimpose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a\nmanner that passes judgment upon or presupposes the illegitimacy of religious beliefs and\npractices. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520. Factors relevant to the\nassessment of governmental neutrality include \xe2\x80\x9cthe historical background of the decision under\nchallenge, the specific series of events leading to the enactment or official policy in question, and\nthe legislative or administrative history, including contemporaneous statements made by members\nof the decision-making body.\xe2\x80\x9d In view of these factors, the record here demonstrates that the\nCommission\xe2\x80\x99s consideration of Phillips\xe2\x80\x99 case was neither tolerant nor respectful of his religious\nbeliefs. The Commission gave \xe2\x80\x9cevery appearance,\xe2\x80\x9d of adjudicating his religious objection based\non a negative normative \xe2\x80\x9cevaluation of the particular justification\xe2\x80\x9d for his objection and the\nreligious grounds for it, but government has no role in expressing or even suggesting whether the\nreligious ground for Phillips\xe2\x80\x99 conscience-based objection is legitimate or illegitimate. The\ninference here is thus that Phillips\xe2\x80\x99 religious objection was not considered with the neutrality\nrequired by the Free Exercise Clause. The State\xe2\x80\x99s interest could have been weighed against\nPhillips\xe2\x80\x99 sincere religious objections in a way consistent with the requisite religious neutrality that\nmust be strictly observed. But the official expressions of hostility to religion in some of the\n207\n\n\x0ccommissioners\xe2\x80\x99 comments were inconsistent with that requirement, and the Commission\xe2\x80\x99s\ndisparate consideration of Phillips\xe2\x80\x99 case compared to the cases of the other bakers suggests the\nsame.\n370 P. 3d 272, reversed.\nKENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER,\nALITO, KAGAN, and GORSUCH, JJ., joined. KAGAN, J., filed a concurring opinion, in which\nBREYER, J., joined. GORSUCH, J., filed a concurring opinion, in which ALITO, J., joined.\nTHOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which\nGORSUCH, J., joined. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J.,\njoined.\nAFFIRMATIVE ACTION: Affirmative action allows, and sometimes requires, employers,\nprospective employers, schools and other institutions to take positive steps designed to eliminate\ncurrent discrimination, remedy past discrimination, and prevent future discrimination. Affirmative\naction lawfully allows preferential treatment based on race, color, sex, creed and age. It is often\nreferred to by some as \xe2\x80\x9creverse\xe2\x80\x9d discrimination.\nTwo recent U.S. Supreme Court cases illustrate the state of affirmative action. If affirmative action\nis the patient, one could argue that while the patient is still alive, the patient is in very critical\ncondition.\n\nSCHUETTE, ATTORNEY GENERAL OF MICHIGAN v. COALITION TO\nDEFEND AFFIRMATIVE ACTION\nSUPREME COURT OF THE UNITED STATES\nSCHUETTE, ATTORNEY GENERAL OF MICHIGAN v. COALITION TO\nDEFEND AFFIRMATIVE ACTION\n572 U. S. ____ (2014)\n(Case Syllabus edited by the Author)\nJUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which\nTHE CHIEF JUSTICE and JUSTICE ALITO join.\nAfter this Court decided that the University of Michigan\xe2\x80\x99s undergraduate admissions plan\xe2\x80\x99s use of\nrace-based preferences violated the Equal Protection Clause, Gratz v. Bollinger, 539 U. S. 244,\n270, but that the law school admission plan\xe2\x80\x99s more limited use did not, Grutter v. Bollinger, 539\nU. S. 306, 343, Michigan voters adopted Proposal 2, now Art. I, \xc2\xa726, of the State Constitution,\nwhich, as relevant here, prohibits the use of race-based preferences as part of the admissions\nprocess for state universities. In consolidated challenges, the District Court granted summary\njudgment to Michigan, thus upholding Proposal 2, but the Sixth Circuit reversed, concluding that\nthe proposal violated the principles of Washington v. Seattle School Dist. No. 1, 458 U. S. 457.\n208\n\n\x0cHeld:\nThe judgment of the Sixth Circuit is reversed.\nJUSTICE KENNEDY, joined by THE CHIEF JUSTICE and JUSTICE ALITO, concluded that\nthere is no authority in the Federal Constitution or in this Court\xe2\x80\x99s precedents for the Judiciary to\nset aside Michigan laws that commit to the voters the determination whether racial preferences\nmay be considered in governmental decisions, in particular with respect to school admissions.\n(a) This case is not about the constitutionality, or the merits, of race-conscious admissions policies\nin higher education. Here, the principle that the consideration of race in admissions is permissible\nwhen certain conditions are met is not being challenged. Rather, the question concerns whether,\nand in what manner, voters in the States may choose to prohibit the consideration of such racial\npreferences. Where States have prohibited race-conscious admissions policies, universities have\nresponded by experimenting \xe2\x80\x9cwith a wide variety of alternative approaches.\xe2\x80\x9d Grutter, supra, at\n342. The decision by Michigan voters reflects the ongoing national dialogue about such practices.\n(b) The Sixth Circuit\xe2\x80\x99s determination that Seattle controlled here extends Seattle\xe2\x80\x99s holding in a\ncase presenting quite different issues to reach a mistaken conclusion.\n(1) It is necessary to consider first the relevant cases preceding Seattle and the background\nagainst which Seattle arose. Both Reitman v. Mulkey, 387 U. S. 369, and Hunter v. Erickson, 393\nU. S. 385, involved demonstrated injuries on the basis of race that, by reasons of state\nencouragement or participation, became more aggravated. In Mulkey, a voter-enacted amendment\nto the California Constitution prohibiting state legislative interference with an owner\xe2\x80\x99s prerogative\nto decline to sell or rent residential property on any basis barred the challenging parties, on account\nof race, from invoking the protection of California\xe2\x80\x99s statutes, thus preventing them from leasing\nresidential property. In Hunter, voters overturned an Akron ordinance that was enacted to address\nwidespread racial discrimination in housing sales and rentals had forced many to live in\n\xe2\x80\x9c\xe2\x80\x98unhealthful, unsafe, unsanitary and overcrowded\xe2\x80\x99\xe2\x80\x9d segregated housing, 393 U. S., at 391. In\nSeattle, after the school board adopted a mandatory busing program to alleviate racial isolation of\nminority students in local schools, voters passed a state initiative that barred busing to desegregate.\nThis Court found that the state initiative had the \xe2\x80\x9cpractical effect\xe2\x80\x9d of removing \xe2\x80\x9cthe authority to\naddress a racial problem . . . from the existing decision-making body, in such a way as to burden\nminority interests\xe2\x80\x9d of busing advocates who must now \xe2\x80\x9cseek relief from the state legislature, or\nfrom the statewide electorate.\xe2\x80\x9d 458 U. S., at 474.\n(2) Seattle is best understood as a case in which the state action had the serious risk, if not\npurpose, of causing specific injuries on account of race as had been the case in Mulkey and Hunter.\nWhile there had been no judicial finding of de jure segregation with respect to Seattle\xe2\x80\x99s school\ndistrict, a finding that would be required today, see Parents Involved in Community Schools v.\nSeattle School Dist. No. 1, 551 U. S. 701, 720\xe2\x80\x93721, Seattle must be understood as Seattle\nunderstood itself, as a case in which neither the State nor the United States \xe2\x80\x9cchallenge[d] the\npropriety of race-conscious student assignments for the purpose of achieving integration, even\nabsent a finding of prior de jure segregation.\xe2\x80\x9d 458 U. S. at 472, n. 15.\n\n209\n\n\x0cSeattle\xe2\x80\x99s broad language, however, went well beyond the analysis needed to resolve the\ncase. Seizing upon the statement in Justice Harlan\xe2\x80\x99s concurrence in Hunter that the procedural\nchange in that case had \xe2\x80\x9cthe clear purpose of making it more difficult for certain racial and religious\nminorities to achieve legislation that is in their interest,\xe2\x80\x9d 385 U. S., at 395, the Seattle Court\nestablished a new and far reaching rationale: Where a government policy \xe2\x80\x9cinures primarily to the\nbenefit of the minority\xe2\x80\x9d and \xe2\x80\x9cminorities . . . consider\xe2\x80\x9d the policy to be \xe2\x80\x9c \xe2\x80\x98in their interest,\xe2\x80\x99 \xe2\x80\x9d then\nany state action that \xe2\x80\x9cplace[s] effective decision making authority over\xe2\x80\x9d that policy \xe2\x80\x9cat a different\nlevel of government\xe2\x80\x9d is subject to strict scrutiny. 458 U. S., at 472, 474.\n(3) To the extent Seattle is read to require the Court to determine and declare which political\npolicies serve the \xe2\x80\x9cinterest\xe2\x80\x9d of a group defined in racial terms, that rationale was unnecessary to\nthe decision in Seattle; it has no support in precedent; and it raises serious equal protection\nconcerns. In cautioning against \xe2\x80\x9cimpermissible racial stereotypes,\xe2\x80\x9d this Court has rejected the\nassumption that all individuals of the same race think alike, see Shaw v. Reno, 509 U. S. 630, 647,\nbut that proposition would be a necessary beginning point were the Seattle formulation to control.\nAnd if it were deemed necessary to probe how some races define their own interest in political\nmatters, still another beginning point would be to define individuals according to race. Such a\nventure would be undertaken with no clear legal standards or accepted sources to guide judicial\ndecision. It would also result in, or impose a high risk of, inquiries and categories dependent upon\ndemeaning stereotypes, classifications of questionable constitutionality on their own terms.\nAssuming these steps could be taken, the court would next be required to determine the policy\nrealms in which groups defined by race had a political interest. That undertaking, again without\nguidance from accepted legal standards, would risk the creation of incentives for those who support\nor oppose certain policies to cast the debate in terms of racial advantage or disadvantage. Adoption\nof the Seattle formulation could affect any number of laws or decisions, involving, e.g., tax policy\nor housing subsidies. And racial division would be validated, not discouraged.\nIt can be argued that objections to the larger consequences of the Seattle formulation need\nnot be confronted here, for race was an undoubted subject of the ballot issue. But other problems\nraised by Seattle, such as racial definitions, still apply. And the principal flaw in the Sixth Circuit\xe2\x80\x99s\ndecision remains: Here there was no infliction of a specific injury of the kind at issue in Mulkey\nand Hunter and in the history of the Seattle schools, and there is no precedent for extending these\ncases to restrict the right of Michigan voters to determine that race-based preferences granted by\nstate entities should be ended. The Sixth Circuit\xe2\x80\x99s judgment also calls into question other States\xe2\x80\x99\nlong-settled rulings on policies similar to Michigan\xe2\x80\x99s.\nUnlike the injuries in Mulkey, Hunter, and Seattle, the question here is not how to address\nor prevent injury caused on account of race but whether voters may determine whether a policy of\nrace-based preferences should be continued. By approving Proposal 2 and thereby adding \xc2\xa7 26 to\ntheir State Constitution, Michigan voters exercised their privilege to enact laws as a basic exercise\nof their democratic power, bypassing public officials they deemed not responsive to their concerns\nabout a policy of granting race-based preferences. The mandate for segregated schools, Brown v.\nBoard of Education, 347 U. S. 483, and scores of other examples teach that individual liberty has\nconstitutional protection. But this Nation\xe2\x80\x99s constitutional system also embraces the right of citizens\nto speak and debate and learn and then, as a matter of political will, to act through a lawful electoral\nprocess, as Michigan voters have done here. These precepts are not inconsistent with the well210\n\n\x0cestablished principle that when hurt or injury is inflicted on racial minorities by the encouragement\nor command of laws or other state action, the Constitution requires redress by the courts. Such\ncircumstances were present in Mulkey, Hunter, and Seattle, but they are not present here.\nJUSTICE SCALIA, joined by JUSTICE THOMAS, agreed that \xc2\xa7 26 rightly stands, though\nnot because it passes muster under the political process doctrine. It likely does not, but the cases\nestablishing that doctrine should be overruled. They are patently atextual, unadministrable, and\ncontrary to this Court\xe2\x80\x99s traditional equal protection jurisprudence. The question here, as in every\ncase in which neutral state action is said to deny equal protection on account of race, is whether\nthe challenged action reflects a racially discriminatory purpose. It plainly does not.\n(a) The Court of Appeals for the Sixth Circuit held \xc2\xa726 unconstitutional under the so-called\npolitical-process doctrine, derived from Washington v. Seattle School Dist. No. 1, 458 U. S. 457,\nand Hunter v. Erickson, 393 U. S. 385. In those cases, one level of government exercised borrowed\nauthority over an apparently \xe2\x80\x9cracial issue\xe2\x80\x9d until a higher level of government called the loan. This\nCourt deemed each revocation an equal-protection violation, without regard to whether there was\nevidence of an invidious purpose to discriminate. The relentless, radical logic of Hunter and Seattle\nwould point to a similar conclusion here, as in so many other cases.\n(b) The problems with the political-process doctrine begin with its triggering prong, which\nassigns to a court the task of determining Cite as: 572 U. S. ____ (2014) 5 Syllabus whether a law\nthat reallocates policymaking authority concerns a \xe2\x80\x9cracial issue,\xe2\x80\x9d Seattle, 458 U. S., at 473, i.e.,\nwhether adopting one position on the question would \xe2\x80\x9cat bottom inur[e] primarily to the benefit of\nthe minority, and is designed for that purpose,\xe2\x80\x9d id., at 472. Such freeform judicial musing into\nethnic and racial \xe2\x80\x9cinterests\xe2\x80\x9d involves judges in the dirty business of dividing the Nation \xe2\x80\x9cinto racial\nblocs,\xe2\x80\x9d Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 603, 610 (O\xe2\x80\x99Connor, J., dissenting), and\npromotes racial stereotyping, see Shaw v. Reno, 509 U. S. 630, 647. More fundamentally, the\nanalysis misreads the Equal Protection Clause to protect particular groups, a construction that has\nbeen repudiated in a \xe2\x80\x9clong line of cases understanding equal protection as a personal right.\xe2\x80\x9d\nAdarand Constructors, Inc. v. Pe\xc3\xb1a, 515 U. S. 200, 224, 230.\n(c) The second part of the Hunter-Seattle analysis directs a court to determine whether the\nchallenged act \xe2\x80\x9cplace[s] effective decision making authority over [the] racial issue at a different\nlevel of government,\xe2\x80\x9d Seattle, supra, at 474; but, in another line of cases, the Court has emphasized\nthe near-limitless sovereignty of each State to design its governing structure as it sees fit, see, e.g.,\nHolt Civic Club v. Tuscaloosa, 439 U. S. 60, 71. Taken to the limits of its logic, Hunter-Seattle is\nthe gaping exception that nearly swallows the rule of structural state sovereignty, which would\nseem to permit a State to give certain powers to cities, later assign the same powers to counties,\nand even reclaim them for itself.\n(d) Hunter and Seattle also endorse a version of the proposition that a facially neutral law\nmay deny equal protection solely because it has a disparate racial impact. That equal-protection\ntheory has been squarely and soundly rejected by an \xe2\x80\x9cunwavering line of cases\xe2\x80\x9d holding \xe2\x80\x9cthat a\nviolation of the Equal Protection Clause requires state action motivated by discriminatory intent,\xe2\x80\x9d\nHernandez v. New York, 500 U. S. 352, 372\xe2\x80\x93373 (O\xe2\x80\x99Connor, J., concurring in judgment), and that\n\xe2\x80\x9cofficial action will not be held unconstitutional solely because it results in a racially\n211\n\n\x0cdisproportionate impact,\xe2\x80\x9d Arlington Heights v. Metropolitan Housing Development Corp., 429 U.\nS. 252, 264\xe2\x80\x93265. Respondents cannot prove that the action here reflects a racially discriminatory\npurpose, for any law expressly requiring state actors to afford all persons equal protection of the\nlaws does not\xe2\x80\x94 cannot\xe2\x80\x94deny \xe2\x80\x9cto any person . . . equal protection of the laws,\xe2\x80\x9d U. S. Const.,\nAmdt. 14, \xc2\xa71.\nJUSTICE BREYER agreed that the amendment is consistent with the Equal Protection\nClause, but for different reasons. First, this case addresses the amendment only as it applies to, and\nforbids, race conscious admissions programs that consider race solely in order to obtain the\neducational benefits of a diverse student body. Second, the 6 SCHUETTE v. BAMN Syllabus\nConstitution permits, but does not require, the use of the kind of race-conscious programs now\nbarred by the Michigan Constitution. It foresees the ballot box, not the courts, as the normal\ninstrument for resolving debates about the merits of these programs. Third, Hunter v. Erickson,\n393 U. S. 385, and Washington v. Seattle School Dist. No. 1, 458 U. S. 457, which reflect the\nimportant principle that an individual\xe2\x80\x99s ability to participate meaningfully in the political process\nshould be independent of his race, do not apply here. Those cases involved a restructuring of the\npolitical process that changed the political level at which policies were enacted, while this case\ninvolves an amendment that took decision making authority away from unelected actors and placed\nit in the hands of the voters. Hence, this case does not involve a diminution of the minority\xe2\x80\x99s ability\nto participate in the political process. Extending the holding of Hunter and Seattle to situations\nwhere decision making authority is moved from an administrative body to a political one would\nalso create significant difficulties, given the nature of the administrative process. Furthermore, the\nprinciple underlying Hunter and Seattle runs up against a competing principle favoring decision\nmaking through the democratic process.\n701 F. 3d 466, reversed.\nKENNEDY, J., announced the judgment of the Court and delivered an opinion, in which\nROBERTS, C. J., and ALITO, J., joined. ROBERTS, C. J., filed a concurring opinion. SCALIA,\nJ., filed an opinion concurring in the judgment, in which THOMAS, J., joined. BREYER, J., filed\nan opinion concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which\nGINSBURG, J., joined. KAGAN, J., took no part in the consideration or decision of the case.\n\nFISHER v. UNIVERSITY OF TEXAS AT AUSTIN, ET AL\nSUPREME COURT OF THE UNITED STATES\nFISHER v. UNIVERSITY OF TEXAS AT AUSTIN, ET AL\n579 U. S. ____ (2016)\n(Case Syllabus edited by the Author)\nJUSTICE KENNEDY delivered the opinion of the Court.\nThe University of Texas at Austin (University) uses an undergraduate admissions system\ncontaining two components. First, as required by the State\'s Top Ten Percent Law, it offers\n212\n\n\x0cadmission to any students who graduate from a Texas high school in the top 10% of their class. It\nthen fills the remainder of its incoming freshman class, some 25%, by combining an applicant\'s\n"Academic Index"--the student\'s SAT score and high school academic performance--with the\napplicant\'s "Personal Achievement Index," a holistic review containing numerous factors,\nincluding race. The University adopted its current admissions process in 2004, after a year-longstudy of its admissions process--undertaken in the wake of Grutter v. Bollinger, 539 U. S. 306,\nand Gratzv. Bollinger, 539 U. S. 244 led it to conclude that its prior race-neutral system did not\nreach its goal of providing the educational benefits of diversity to its undergraduate students.\nPetitioner Abigail Fisher, who was not in the top 10% of her high school class, was denied\nadmission to the University\'s 2008 freshman class. She filed suit, alleging that the University\'s\nconsideration of race as part of its holistic-review process disadvantaged her and other Caucasian\napplicants, in violation of the Equal Protection Clause. The District Court entered summary\njudgment in the University\'s favor, and the Fifth Circuit affirmed. This Court vacated the\njudgment, Fisher v. University of Tex. at Austin, 570 U. S. ___ (Fisher I), and remanded the case\nto the Court of Appeals, so the University\'s program could be evaluated under the proper strict\nscrutiny standard. On remand, the Fifth Circuit again affirmed the entry of summary judgment for\nthe University.\nHeld:\nThe race-conscious admissions program in use at the time of petitioner\'s application is lawful under\nthe Equal Protection Clause.\n(a) Fisher I sets out three controlling principles relevant to assessing the constitutionality of a\npublic university\'s affirmative action program. First, a university may not consider race "unless\nthe admissions process can withstand strict scrutiny," i.e., it must show that its "purpose or interest\nis both constitutionally permissible and substantial, and that its use of the classification is\nnecessary" to accomplish that purpose. 570 U. S., at ___. Second, "the decision to pursue the\neducational benefits that flow from student body diversity is, in substantial measure, an academic\njudgment to which some, but not complete, judicial deference is proper.". Third, when determining\nwhether the use of race is narrowly tailored to achieve the university\'s permissible goals, the school\nbears the burden of demonstrating that "available" and "workable" "race-neutral alternatives" do\nnot suffice.\n(b) The University\'s approach to admissions gives rise to an unusual consequence here. The\ncomponent with the largest impact on petitioner\'s chances of admission was not the school\'s\nconsideration of race under its holistic-review process but the Top Ten Percent Plan. Because\npetitioner did not challenge the percentage part of the plan, the record is devoid of evidence of its\nimpact on diversity. Remand for further fact finding would serve little purpose, however, because\nat the time of petitioner\'s application, the current plan had been in effect only three years and, in\nany event, the University lacked authority to alter the percentage plan, which was mandated by the\nTexas Legislature. These circumstances refute any criticism that the University did not make good\nfaith efforts to comply with the law. The University, however, does have a continuing obligation\nto satisfy the strict scrutiny burden: by periodically reassessing the admission program\'s\nconstitutionality, and efficacy, in light of the school\'s experience and the data it has gathered since\n\n213\n\n\x0cadopting its admissions plan, and by tailoring its approach to ensure that race plays no greater role\nthan is necessary to meet its compelling interests.\n(c) Drawing all reasonable inferences in her favor, petitioner has not shown by a preponderance\nof the evidence that she was denied equal treatment at the time her application was rejected.\n(1) Petitioner claims that the University has not articulated its compelling interest with\nsufficient clarity because it has failed to state more precisely what level of minority enrollment\nwould constitute a "critical mass." However, the compelling interest that justifies consideration of\nrace in college admissions is not an interest in enrolling a certain number of minority students, but\nan interest in obtaining "the educational benefits that flow from student body diversity." Fisher I,\n570 U. S., at ___. Since the University is prohibited from seeking a particular number or quota of\nminority students, it cannot be faulted for failing to specify the particular level of minority\nenrollment at which it believes the educational benefits of diversity will be obtained.\nOn the other hand, asserting an interest in the educational benefits of diversity writ large is\ninsufficient. A university\'s goals cannot be elusory or amorphous--they must be sufficiently\nmeasurable to permit judicial scrutiny of the policies adopted to reach them. The record here\nreveals that the University articulated concrete and precise goals--e.g., ending stereotypes,\npromoting "cross-racial understanding," preparing students for "an increasingly diverse workforce\nand society," and cultivating leaders with "legitimacy in the eyes of the citizenry"--that mirror the\ncompelling interest this Court has approved in prior cases. It also gave a "reasoned, principled\nexplanation" for its decision, in a 39-page proposal written after a year-long study revealed that its\nrace-neutral policies and programs did not meet its goals.\n(2) Petitioner also claims that the University need not consider race because it had already\n"achieved critical mass" by 2003 under the Top Ten Percent Plan and race-neutral holistic review.\nThe record, however, reveals that the University studied and deliberated for months, concluding\nthat race-neutral programs had not achieved the University\'s diversity goals, a conclusion\nsupported by significant statistical and anecdotal evidence.\n(3) Petitioner argues further that it was unnecessary to consider race because such\nconsideration had only a minor impact on the number of minority students the school admitted.\nBut the record shows that the consideration of race has had a meaningful, if still limited, effect on\nfreshman class diversity. That race consciousness played a role in only a small portion of\nadmissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality.\n(4) Finally, petitioner argues that there were numerous other race-neutral means to achieve\nthe University\'s goals. However, as the record reveals, none of those alternatives was a workable\nmeans of attaining the University\'s educational goals, as of the time of her application.\n758 F. 3d 633, affirmed.\nKENNEDY, J., delivered the opinion of the Court, in which GINSBURG,\nBREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed a dissenting opinion. ALITO, J.,\nfiled a dissenting opinion, in which ROBERTS, C. J., and THOMAS, J., joined. KAGAN, J., took\nno part in the consideration or decision of the case.\n214\n\n\x0cReferences:\nAffirmative Action Fast Facts. (2018, April 03). Retrieved July 27, 2018, from\nhttps://www.cnn.com/2013/11/12/us/affirmative-action-fast-facts/index.html\nAge Discrimination. (n.d.). Retrieved July 27, 2018, from\nhttps://www.eeoc.gov/laws/types/age.cfm\nAranyos, S. (2018, May 04). Keeping up with changes in New York State and New York City\nemployment laws. Retrieved July 27, 2018, from\nhttps://www.bizjournals.com/newyork/news/2018/05/04/keeping-up-with-changes-in-new-yorkstate-and-new.html\nBona Fide Occupational Qualification. (n.d.). Retrieved July 27, 2018, from\nhttps://smallbusiness.findlaw.com/employment-law-and-human-resources/bona-fideoccupational-qualification.html\nDiscrimination in Public Accommodations. (n.d.). Retrieved July 27, 2018, from\nhttps://civilrights.findlaw.com/enforcing-your-civil-rights/discrimination-in-publicaccommodations.html\nDisparate Impact Discrimination. (n.d.). Retrieved July 27, 2018, from\nhttps://employment.findlaw.com/employment-discrimination/disparate-impactdiscrimination.html\nDivision of Human Rights. (n.d.). Retrieved July 27, 2018, from https://dhr.ny.gov/\nDivision of Human Rights. (n.d.). Retrieved July 27, 2018, from https://dhr.ny.gov/law\nEEOC Home Page. (n.d.). Retrieved July 27, 2018, from https://www.eeoc.gov/\nEmployment Discrimination Laws. (n.d.). Retrieved July 27, 2018, from https://ag.ny.gov/civilrights/employment-discrimination-laws\nFacts About Equal Pay and Compensation Discrimination. (n.d.). Retrieved July 27, 2018, from\nhttps://www.eeoc.gov/eeoc/publications/fs-epa.cfm\nFacts About Sexual Harassment. (n.d.). Retrieved July 27, 2018, from\nhttps://www.eeoc.gov/eeoc/publications/fs-sex.cfm\nFacts About the Americans with Disabilities Act. (n.d.). Retrieved July 27, 2018, from\nhttps://www.eeoc.gov/eeoc/publications/fs-ada.cfm\nFind Laws, Legal Information, and Attorneys. (n.d.). Retrieved July 25, 2018June 11, 2018, from\nhttps://www.findlaw.com/\nFindLaw\'s United States Supreme Court case and opinions. (n.d.). Retrieved July 26, 2018, from\nhttps://caselaw.findlaw.com/court/us-supreme-court/index.html\n\n215\n\n\x0cHow to File an Unemployment Claim. (n.d.). Retrieved July 27, 2018, from\nhttps://labor.ny.gov/equal-opportunity/how-to-file-a-discrimination-claim.shtm\nJustia Law. (n.d.). Retrieved July 25, 2018, from https://law.justia.com/\nNew York State. (n.d.). New York State Unified Court System. Retrieved July 25, 2018, from\nhttp://nycourts.gov/\nNew York State Division of Human Rights Fair Housing Guide. (2017, April). Retrieved July\n27, 2018, from https://dhr.ny.gov/sites/default/files/pdf/nysdhr-fair-housing-guide.pdf\nPogue, D. L., Clifford, E., & Schwartz, A. L. (2009). Understanding New York Law, 2013-14.\nUpstate Legal Publishers\nPolicy Guidance on Current Issues of Sexual Harassment. (n.d.). Retrieved July 27, 2018, from\nhttps://www.eeoc.gov/policy/docs/currentissues.html\nPregnancy Discrimination. (n.d.). Retrieved July 27, 2018, from\nhttps://www.eeoc.gov/laws/types/pregnancy.cfm\nThe Housing Council. (2007, November 12). Tenant Rights & Responsibilities. Retrieved July\n27, 2018, from https://www.rochester.edu/reslife/assets/pdf/non/Tenants-RightsResponsibilities.pdf\nThe Pregnancy Discrimination Act of 1978. (n.d.). Retrieved July 27, 2018, from\nhttps://www.eeoc.gov/laws/statutes/pregnancy.cfm\nTitle VII of the Civil Rights Act of 1964. (n.d.). Retrieved July 27, 2018, from\nhttps://www.eeoc.gov/laws/statutes/titlevii.cfm\nWang, V. (2018, June 01). The #MeToo Movement Came to Albany. But Will It Stick?\nRetrieved July 27, 2018, from https://www.nytimes.com/2018/06/01/nyregion/metoo-albanysexual-harassment.html\nWelcome to LII. (n.d.). Retrieved July 25, 2018, from https://www.law.cornell.edu/\nWhat is Quid Pro Quo Harassment? (n.d.). Retrieved July 27, 2018, from\nhttps://employment.findlaw.com/employment-discrimination/what-is-quid-pro-quoharassment.html\n\n216\n\n\x0cCHAPTER 8\nTHE PATH OF A CIVIL TORT CASE\nINTRODUCTION\nThe previous chapter explained the path of a criminal case in NYS. This chapter will explain the\npath of a civil litigation case. While there are many similarities between a civil and criminal case,\nthere are also many things that are different. It should be noted that there are far more attorneys\nwho work in civil law on a daily basis than in criminal law.\nThe law in the United States is based on the common law legal system. We base our law on\nprecedent. So, when we speak of civil law here in the United States, we are differentiating a lawsuit\nagainst a person or entity we feel has wronged us in some way versus a criminal act and the\nconsequences of that act. This should not be confused with the civil law legal system which is the\nmost common legal system in the world. The civil law legal system is not based on precedent, but\non codified laws. It is very different than the common law legal system.\nTo complicate things even more, when we speak of civil law here in the United States, many\nlawyers will differentiate between transactional and litigation. Civil law that is transactional would\nbe matters like drafting a contract or a will. It may involve real estate purchases and sales. Civil\nlaw that involves litigation may be a lawsuit that is a result of a breach of contract or contesting\nthe validity of a will. It may involve instituting a lawsuit after a person is injured in an automobile\naccident.\nWhile there are many different areas of the law that are in the civil law bucket, generally speaking\nthey all follow the same litigation path. This chapter will focus on the law of torts and the path of\na civil negligence litigation case.\n\nGENERAL LAW OF TORTS\nWHAT IS A TORT?\nA tort is an act or omission, other than a breach of contract, which gives rise to injury or harm to\nanother, and amounts to a civil wrong for which courts impose liability. In other words, a wrong\nhas been committed and the remedy is money damages to the person wronged.\nThere are three types of tort actions; negligence, intentional torts, and strict liability. The elements\nof each are slightly different. However, the process of litigating each of them is basically the same.\nWHAT IS THE STANDARD OF PROOF IN A CIVIL TORT CASE?\nAs discussed in Chapter 2, there are different standards of proof for criminal and civil cases. Within\ncivil cases there are also two different standards of proof. For civil tort cases, the standard of proof\nis preponderance of the evidence. Preponderance of the evidence means that it is more likely than\nnot that the defendant is legally responsible for the plaintiff\xe2\x80\x99s injuries. If the plaintiff proves their\ncase by more than 50 percent of the evidence, the jury must come back with a verdict in favor of\nthe plaintiff.\n217\n\n\x0cNEGLIGENCE:\nNegligence is the most common of tort cases. At its core negligence occurs when a tortfeasor, the\nperson responsible for committing a wrong, is careless and therefore responsible for the harm this\ncarelessness caused to another.\nThere are four elements of a negligence case that must be proven for a lawsuit to be successful.\nAll four elements must exist and be proven by a plaintiff. The failure to prove any one of these\nfour elements makes a lawsuit in negligence deficient. The four elements are:\n\xe2\x80\xa2 Duty\n\xe2\x80\xa2 Breach\n\xe2\x80\xa2 Causation\n\xe2\x80\xa2 Harm\nA basic negligence lawsuit would require a person owing a duty to another person, then breaching\nthat duty, with that breach being the cause of the harm to the other person.\nDUTY:\nThe first element of negligence is duty, also referred to as duty of care. What is a duty? In its most\nsimplistic terms, it is an obligation to either do or not do something that will harm someone else.\nThink of duty as an obligation. We all have a duty or an obligation to act reasonably or reasonably\nrefrain from certain actions, in such a way as to not cause injury or harm to another person. For\nexample, as drivers of automobiles on public roads, we all have a duty to follow the rules of the\nroad. It is our obligation as a licensed driver to do so. We understand that rules like speed limits\nare imposed to protect others. A reasonable person understands that the failure to follow the rules\nof the road may result in harm to another person.\nScope of one\xe2\x80\x99s duty:\nThe relationship between parties creates the existence or nonexistence of your duty to them.\nDepending on what our relationship is to others changes our obligations. For example, a\nmanufacturer\xe2\x80\x99s duty of care is to make sure that products they sell are reasonably safe and to\nprovide warnings of any potential dangers that the use of the product may cause. Therefore, the\nscope of a manufacturer\xe2\x80\x99s duty of care is to a consumer who uses the product as intended and\nproperly. The manufacturer may have no duty of care to a consumer who uses the product for a\ndifferent purpose than intended or if the product is used improperly. Here is another example. A\nproperty owner has a duty of care to make sure that her/his property is reasonable safe to those that\nmay enter onto the property. That level of duty of care may be different depending on the\nrelationship of the property owner to those entering the property. The duty of care owed a visitor\nmay be different than one owed a trespasser.\nThe reasonable person standard:\nA duty of care is based on what a reasonable person, in the same or similar circumstance, would\ndo. A reasonable person is a legal fiction. It is an objective test on not what a person honestly\nthought was the right thing to do, but what that person should have done based on what a\nreasonable person would have done in the same or similar circumstance. Note that while the\n218\n\n\x0cstandard of reasonableness does not change, the \xe2\x80\x9csame or similar circumstance\xe2\x80\x9d usually does\nchange. The trier of fact, in other words a jury (or judge in a bench trial) decides what a reasonable\nperson would have done based on the circumstances presented to them. Who the members of a\njury are matters. That is the point of voir dire as previously discussed in Chapter 5. Voir dire is\nalso part of the civil jury selection process. What is considered reasonable to a jury in NYC may\nnot be so to a jury in Batavia, N.Y., and yet both juries can be right.\nGood Samaritan Laws:\nUnless a person has a particular relationship with another person, such as a doctor/patient\nrelationship, a person is not legally responsible to help someone who is in need. A person cannot\nbe sued or arrested for failing to do so. The law does not force people to make moral decisions to\nhelp others. There can me many reasons why a person may not volunteer to help someone who is\nin need. One of them may be the fear that they will be sued by the person in need if they make\nthings worse. To elevate that concern and thereby encourage people to help others in need, we\nhave what are called \xe2\x80\x9cGood Samaritan\xe2\x80\x9d laws. These laws provide immunity to those who choose\nto help others who are injured in the event they unintentionally make matters worse.\nBREACH:\nOnce a plaintiff has established and proven that a defendant owned a duty of care to the plaintiff,\nthe second element of negligence a plaintiff must prove is a breach of that duty of care. This is\nwhen a person or company has a duty of care to another and fails to live up to that standard of care.\nA plaintiff must prove that the defendant\xe2\x80\x99s act or omission caused the plaintiff to be exposed to\nunreasonable risk of injury and/or harm. In other words, the defendant failed to meet their\nobligation to the plaintiff and therefore put the plaintiff in harm\xe2\x80\x99s way.\nRes Ipsa Loquitur:\nBad things happen all the time to people that shouldn\xe2\x80\x99t. In some circumstances, a defendant may\nbe in the best, or only, position to prove why this bad thing happened to someone. This is the legal\ntheory of res ipsa loquitur, which is Latin for \xe2\x80\x9cthe thing speaks for itself.\xe2\x80\x9d Just the fact that a\ncertain event occurred and caused harm to someone establishes the defendant\xe2\x80\x99s breach of duty of\ncare. Airplane crashes would be an example of this. To establish res ipsa loquitur, three\nrequirements must be met which are:\n1. This event is not something that normally happens without negligence.\n2. This negligence would be attributed to the defendant since this is an event they are\nresponsible for preventing.\n3. Neither the plaintiff nor any other third party is responsible for the harm to the plaintiff.\nTaking our example of an airplane crash, we can answer all three requirements. First, airplane\ncrashes do not normally occur without negligence. They are rare events. Second, the negligence\nof an airplane crash would be with the airline since they are responsible for preventing them. Third,\nthe passengers are not responsible for the harm caused them when a plane crashes. We therefore\nhave res ipsa loquitur, the negligence of an airline when a plane crashes speaks for itself. The\nburden would then be on the airline to show they did not breach their duty of care to its passengers.\nNegligence per se:\n219\n\n\x0cWe have numerous criminal and civil statutes that prohibit certain acts or omissions that are safety\nrelated. The violation of such a statute may establish the breach of a duty of care. This is the legal\ntheory called negligence per se. For example, we mentioned above that there are rules of the road\nsuch as speed limits that all drivers are expected to obey. If a defendant is therefore speeding while\ninvolved in an accident with a plaintiff, the defendant\xe2\x80\x99s violation of the speed limit statute may be\nnegligence per se, and therefore established the breach of a duty of care to the plaintiff by the\ndefendant.\nCAUSATION:\nThe third element of negligence is causation. There are two types of negligent causation, actual\ncause and proximate cause. Actual cause is sometimes referred to as cause in fact. It means that\n\xe2\x80\x9cbut for\xe2\x80\x9d the negligent act or omission of the defendant, the plaintiff would not have been harmed.\nThis is known as the \xe2\x80\x9cbut for\xe2\x80\x9d test. For example, driver A is passing through an intersection with\na green light. Driver B runs the red light and strikes driver A\xe2\x80\x99s vehicle and injures driver A. Clearly,\n\xe2\x80\x9cbut for\xe2\x80\x9c the running of the red light by driver B, driver A\xe2\x80\x99s vehicle would not have been struck\nby driver B, and drive A would not have been harmed.\nThe second type of negligent causation is proximate cause. Proximate cause requires the natural,\ndirect, and uninterrupted consequence of a negligent act or omission to be the cause of a plaintiff\xe2\x80\x99s\ninjury. Proximate cause also requires foreseeability. It must be foreseeable as to the result, and\nalso as to the plaintiff. If the result is too remote, too far removed, or too unusual from the\ndefendant\xe2\x80\x99s act or omission so as to make them unforeseeable, then the defendant is not the\nproximate cause of the plaintiff\xe2\x80\x99s harm.\nFor example, driver A is speeding. A squirrel runs in front of driver A\xe2\x80\x99s car so driver A swerves,\nand because of the high rate of speed of which he is traveling, loses control of his vehicle and hits\na mailbox. The mailbox flies so violently up in the air from the impact that it hits an overhead\npowerline. The force of the mailbox hitting the powerline forces the powerline to break off the\nutility pole onto the sidewalk where it is still electrified. A pedestrian approaching the scene steps\non the powerline and is injured by the live powerline. A jury may find that driver A\xe2\x80\x99s actions are\nnot the proximate cause of the pedestrian\xe2\x80\x99s injuries, because the resulting harm is so remote and\nso unusual as to render them unforeseeable.\nEggshell theory:\nThe \xe2\x80\x9ceggshell theory\xe2\x80\x9d is the legal doctrine regarding causation that a tortfeasor takes their victim\nas they find them. So, if a plaintiff is more severely harmed than a normal person because of a\npreexisting condition, the defendant will still be held as the cause of the harm. For example, let\xe2\x80\x99s\nsay our plaintiff has a blood disorder that causes her to bleed and bruise more easily than most\npeople. The plaintiff\xe2\x80\x99s injuries due to an automobile accident caused by the defendant are far more\nsevere than would be expected from the low impact of the accident. In fact, most normal people\nwould have been able to just walk away from the accident with no harm. However, the plaintiff\nwas required to receive blood transfusions and remain in the hospital for two weeks as a result of\nthis accident. Under the eggshell theory, the defendant\xe2\x80\x99s actions would still be the cause of the\nharm to the plaintiff even though the results were not foreseeable.\nHARM:\n220\n\n\x0cHarm can come in many forms. It can be economic, like medical costs and loss wages. It can be\nnon-economic, like pain and suffering or extreme emotional distress. It can be harm to a person\xe2\x80\x99s\nbody, to a family member, or to property. However, if one is not harmed in some way, the fourth\nelement of negligence is not met and the lawsuit in negligence will not prevail.\nHarm and causation in some ways are like the chicken and the egg. Which came first? Without\nharm there is really no causation, just a duty and breach of that duty. However, without causation\nthere is no harm since again, we just have the duty and its breach. Just know this, if there is a duty\nand breach of that duty, and a subsequent harm or injury, it must be caused by that breach of duty.\nIf there is a harm or injury, then the law allows for compensation to the person harmed or injured\nin the form of damages. Damages are typically monetary in nature. In other words, we pay\nsomeone money when we injure them due to our negligence. There is in most situations no other\nway to make a person \xe2\x80\x9cwhole\xe2\x80\x9d again. If you lose your leg in an automobile accident caused by\nsomeone\xe2\x80\x99s negligence, they cannot get you your leg back. They can however, pay you money to\nallow you to buy a prosthetic leg, reimburse you for your medical expenditures and loss wages,\npay you for future medical expenses, and pay you for all the pain and suffering associated with the\ninjury. These are known as compensatory damages.\nCompensatory Damages:\nCompensatory damages are categorized as either general damages or special damages. General\ndamages are non-economic while special damages are economic.\nGeneral Damages:\nBelow are some examples of general damages.\n\xe2\x80\xa2 Pain and suffering\n\xe2\x80\xa2 Disfigurement\n\xe2\x80\xa2 Severe emotional Distress\n\xe2\x80\xa2 Loss of consortium\nPain and suffering:\nSome damages are quantifiable. You can do the math and figure them out like loss earnings.\nHowever, some damages are based on the experience, common sense, and judgment of the jury\nlike pain and suffering. Pain and suffering damages not only include what has already happened,\nbut will likely happen in the future because of the injury. If a person loses their arm, there is pain\nand suffering associated with the initial injury and recovery. There will also be future pain and\nsuffering as that individual copes with the everyday difficulties, i.e. suffering, of not having that\narm.\n\nDisfigurement:\nDisfigurement includes any scarring on the body or loss of a body part. It includes scarring caused\nby surgery that is a result of the injury. The damages are not quantifiable. Damages are again\ndetermined by the experience, common sense, and judgment of the jury.\n\n221\n\n\x0cSevere emotional distress:\nPhysical injury is not necessary to prove a person has suffered severe emotional distress. However,\nphysical injury can also cause severe emotional distress. As is the case with pain and suffering and\ndisfigurement, severe emotional distress is not quantifiable.\nLoss of consortium:\nThe spouse of a person that is injured can sue for damages based on the loss of consortium. This\nin includes the loss of a sexual relationship between the injured person and their spouse. However,\nit is important to remember that the loss of consortium is the loss of any and all services provided\nby one\xe2\x80\x99s spouse, not just those that is sexual in nature. For example, if the spouse that is injured\nwas the one that typically took care of the household duties but can no longer do so because of\ntheir injuries, the cost of hiring someone to do so for the life expectancy of the injured person could\nbe considered as loss of consortium damages.\nSpecial Damages:\nBelow are some examples of special damages.\n\xe2\x80\xa2 Medical bills\n\xe2\x80\xa2 Loss of income\n\xe2\x80\xa2 Loss of future earnings\n\xe2\x80\xa2 Custodial care\nMedical bills:\nMedical expenses both current and future are recoverable damages. However, they must be\nreasonable and necessary. Overtreatment is not recoverable and is something that a jury may be\nasked to scrutinize by the defendant. Regarding future medical expenses, those that can be\nreasonable ascertained as required in the future can be calculated.\nLoss of income:\nThe loss of income is a calculation. What income did the plaintiff lose due to the injury suffered?\nIf a person works on commission this may be more difficult to calculate than the loss of income\nof a person who receives a salary. In those situations, looking at historical earnings can be obtained\nand used to calculate a reasonable estimate of loss.\nLoss of future earnings:\nThe loss of future earnings can be calculated based on injury suffered, how it will reasonably\nimpact the ability of the injured person to work in the future, what those earnings would reasonable\nbe, and the life expectancy of the person injured.\nCustodial care:\nCustodial care necessary due to the injury can also be calculated based on the reasonable and\nnecessary past and future custodial care required.\nPunitive Damages:\nThe purpose of punitive damages is to a) punish a tortfeasor and b) discourage further such acts\nby the tortfeasor and others. Punitive damages are appropriate when the actions of a tortfeasor are\ndeemed by a jury to intentional, malicious, fraudulent, violent, or otherwise outrageous in nature.\nThey are over and above compensatory damages.\n222\n\n\x0cA good example of when punitive damages are awarded would be the Liebeck v McDonald\xe2\x80\x99s case.\nIn that case, in 1992, the plaintiff, a 79-year-old grandmother, ordered coffee at a drive-thru\nMcDonald\xe2\x80\x99s window. She was a passenger in her grandson\xe2\x80\x99s vehicle. While the vehicle was still\nparked in the parking lot of McDonald\xe2\x80\x99s, she attempted to take the cover off the cup of coffee\nwhen it spilled in her lap. The coffee was so hot that it caused her third degree burns on six percent\nof her body. She was rushed to emergency. Like many burn victims, she had to endure surgical\nskins grafts due to her injuries. She was hospitalized for 3 weeks.\nShe sued McDonald\xe2\x80\x99s and won. She was awarded compensatory damages, but the jury also\nawarded her $2.7 million dollars in punitive damages. The evidence presented to that jury showed\nthat McDonald\xe2\x80\x99s sold its coffee at 180-190 degrees Fahrenheit. That coffee at that temperature on\na person\xe2\x80\x99s skin could cause third degree burns in two to seven seconds. The evidence presented\nalso showed that McDonald\xe2\x80\x99s knew about this risk for more than 10 years based on the fact that\nthere were more than 700 other claims or reports from other customers that were also burned by\nMcDonald\xe2\x80\x99s coffee being too hot. At that time, McDonald\xe2\x80\x99s was generating revenues of about $1.3\nmillion daily from the sale of coffee. After the verdict, the parties agreed to a final settlement\nwhich included a non-disclosure agreement. Therefore, the exact amount of damages McDonald\xe2\x80\x99s\npaid to Mrs. Liebeck is unknown. After this verdict, McDonald\xe2\x80\x99s decided to lower the temperature\nof its coffee.\nNominal Damages:\nThere are situations where a plaintiff proves their tort case, but a jury finds they have suffered little\nif any harm. When a jury verdict reaches such a result, they will award nominal damages. Nominal\ndamages are a very small or token award of money to a plaintiff who has proven his/her legal case,\nbut has little in the way of an injury or harm.\nDEFENSES TO NEGLIGENCE:\nOften in a negligence lawsuit, the defense will raise what are called \xe2\x80\x9caffirmative defenses.\xe2\x80\x9d This\ncould mean that even if a plaintiff\xe2\x80\x99s claims of negligence are true, the defendant may not be\nresponsible if the affirmative defenses can be proven.\nComparative Negligence:\nSometimes, there is negligence on the part of both parties involved in a negligence lawsuit. When\nthis happens, the jury will be asked by the defendant to consider the comparative negligence of the\nplaintiff and reduce the percentage of the plaintiff\xe2\x80\x99s recovery of damages by that percentage. The\ncaveat is that a plaintiff\xe2\x80\x99s percentage of negligence cannot be greater than that of the defendant. If\nthat is the determination of a jury, then the plaintiff will recover nothing.\n\nAssumption of Risk:\nThe assumption of risk defense means the plaintiff, either expressly or by implication, understands\nthat the risk of injury is inherent with the situation or plaintiff\xe2\x80\x99s conduct and therefore waives the\nright to recover damages if injured. Sometimes, this is by contract. You want to go skydiving and\n\n223\n\n\x0csign a waiver with the company providing that service assuming the risk of injury if things don\xe2\x80\x99t\ngo as planned. Jumping out of an airplane by its very nature is risky.\nAnother example would be playing high school sports. There are inherent risks associated with\nplaying sports in general, and students who participate in those activities assume the risk of injury.\nStatutes of Limitations:\nThe law puts deadlines on when most legal actions can be commenced, both civil and criminal.\nThese limits are called \xe2\x80\x9cstatutes of limitations.\xe2\x80\x9d They are set by statute. In NYS, most, not all can\nbe found in either the CPLR for civil cases or the CPL for criminal cases. There are numerous\nreasons for having statutes of limitations. For example, over time memories of witnesses diminish,\nevidence gets more difficult to obtain or may be lost, and people move. In NYS, a general personal\ninjury negligence case has, pursuant to CPLR \xc2\xa7 214(5), a three-year statute of limitations Medical\nmalpractice on the other hand, even though it is based on negligence, has a two-year six-month\nstatute of limitations pursuant to CPLR \xc2\xa7 214-a.\nTolling of the Statute of Limitations:\nIn some instances, the statute of limitations may be extended or tolled. Under NYS law, a minor\nusually has three years from the date of their eighteenth birthday to commence their lawsuit.\nHowever, if the minor\xe2\x80\x99s lawsuit is a medical malpractice claim, the statute of limitations cannot\nbe extended for more than ten years from the date of the act or omission giving rise to the injury.\nIn some situations, such as mental incapacity, the statute of limitations may be tolled three years.\nINTENTIONAL TORTS:\nIntentional torts require an intended act by a wrongdoer against another. Some intentional torts\ncan also be criminal. For example, if a person batters someone and causes them harm, this is also\na criminal act and the person can be arrested and sued at the same time.\nCommon intentional torts include:\n\xe2\x80\xa2 Assault\n\xe2\x80\xa2 Battery\n\xe2\x80\xa2 Trespass to Land\n\xe2\x80\xa2 Conversion\n\xe2\x80\xa2 Defamation\n\xe2\x80\xa2 Intentional Infliction of Emotional Distress\n\xe2\x80\xa2 False Imprisonment\nAssault:\nCivil assault is an intentional act by the defendant that causes reasonable apprehension or fear of\nharmful or offensive contact of the plaintiff. Actual contact is not required. This is a bit different\nthan its counterpart in criminal law where contact is usually required. Assault is an intentional tort\nto a person.\nBattery:\nBattery is an intentional act by the defendant that causes harmful or offensive contact of the\nplaintiff. The tort of battery often accompanies the tort of assault where it is referred to as assault\nand battery. Battery is most similar to criminal assault. Battery is an intentional tort to a person.\n224\n\n\x0cTrespass to Land:\nTrespass to land requires an intentional act by the defendant which causes the defendant to enter\nor intrude on the plaintiff\xe2\x80\x99s land. Trespass to land is most similar to criminal trespass. It is an\nintentional tort to property.\nConversion:\nConversion is an intentional act by the defendant that causes either the substantial invasion thereof\nor the outright possession by the defendant of the plaintiff\xe2\x80\x99s personal property without the\nplaintiff\xe2\x80\x99s consent. Conversion is an intentional tort to property. It is most similar to the criminal\nstatutes of larceny.\nDefamation:\nDefamation is the intentional communication (sometimes referred to as publication) by the\ndefendant to a third person of a false statement about the plaintiff that causes harm to the reputation\nof the plaintiff resulting in damages. The communication can be in writing, which is called libel,\nor verbally, which is called slander. The communication or publication must be false. It must also\ncause damage to plaintiff by either lowering the plaintiff\xe2\x80\x99s reputation or exposing the plaintiff to\nsome form of hate, contempt, or ridicule. Defamation is an intentional tort to a person. There is no\ncriminal statute that directly correlates to this tort.\nThere are First Amendment constitutional restrictions to the tort of defamation. The landmark U.S.\nSupreme Court case of New York Times Co. v. Sullivan, 376 U.S. 254, (1964) established the\nstandard that for a public official to recover damages for defamation, there must be \xe2\x80\x9cactual malice\xe2\x80\x9d\non the part of the defendant publishing the defamatory statement. The Court defined actual malice\nas either the actual knowledge that the statement the defendant is publishing is false or that the\ndefendant acted with reckless disregard for the truth.\nIn the New York Times Co. v. Sullivan, the plaintiff, Mr. Sullivan, was the Commissioner of Public\nSafety which included his duty to supervise the police in Montgomery Alabama. He sued the New\nYork Times for a full-page advertisement they published titled \xe2\x80\x9cHeed Their Rising Voices\xe2\x80\x9d that\nwas paid for by the Committee to Defend Martin Luther King and Struggle for Freedom in the\nSouth. The advertisement contained several inaccurate accusations against the police that were\ndefamatory. While the plaintiff won a judgment of $500,000 in an Alabama state court, the\nSupreme Court in a 9-0 decision, held that news publications could not be sued for libel by public\nofficials unless the plaintiff was able to establish actual malice in the false reporting of a news\nstory. The Court found that the law applied by the Alabama courts was constitutionally deficient\nin its failure to protect the First Amendment rights of freedom of speech and of the press. The\nCourt therefore held that the evidence presented in the case was insufficient to support a judgment\nfor Sullivan and ruled that the First Amendment protects the publication of all statements about\npublic officials, even those found to be false, unless the statements are made with actual malice.\nCase law has also established the standard of actual malice also applies to public figures. Public\nfigures have been defined as people that have achieved great publicity, fame, or notoriety.\nIntentional Infliction of Emotional Distress:\nIntentional infliction of emotional distress is an intentional act by words or actions of extreme or\noutrageous conduct by the defendant that causes severe emotional distress of the plaintiff. The\n225\n\n\x0cextreme and outrageous conduct must exceed all bounds of decent behavior. The emotional\ndistress of the plaintiff must also be severe and far outside that which is ordinary. Intentional\ninfliction of emotional distress is an intentional tort to a person.\nThe U.S. Supreme court case of Snyder v. Phelps, 562 U.S. 443 (2011) illustrates how difficult it\nis to prove a case intentional infliction of emotional distress. The facts of the case are that on March\n3, 2006, Matthew A. Snyder was killed while serving as a Marine in Iraq. On March 10, the\nWestboro Baptist Church picketed Matthew Snyder\xe2\x80\x99s funeral. They did so while on public\nproperty, but in view of those attending the funeral service. This was not new to the Westboro\nBaptist Church as they had picketed a large number of military funerals throughout the country in\nprotest of what they considered an increase in tolerance of homosexuality in the United States. The\npicketers displayed posters such as "America is doomed", "You\'re going to hell", "and God hates\nyou \xe2\x80\x9c,\xe2\x80\x9d Fag troops\xe2\x80\x9d, and \xe2\x80\x9cThank God for dead soldiers.\xe2\x80\x9d\nThe Snyder family sued the Westboro Baptist Church for invasion of privacy and intentional\ninfliction of emotional distress. The jury found in their favor and awarded the Snyder family $2.9\nmillion in compensatory damages, $6 million in punitive damages for invasion of privacy, and an\nadditional $2 million for causing emotional distress for a total of $10.9 million. The case was\nreversed on appeal by the Fourth Circuit Court of Appeals in favor of the Westboro Baptist Church\nfinding the trial court had erred in its instructions to the jury and that the actions by the church was\nprotected speech. The Snyder family appealed that decision to the U.S. Supreme Court. In an 8-1\ndecision, the Supreme Court agreed with the Fourth Circuit Court of Appeals determining that the\nWestboro Baptist Church\xe2\x80\x99s speech was related to a public issue and therefore was protected speech\nthat could not be prevented as it was on public property. Intentional infliction of emotional distress\nis an intentional tort to a person. There is no criminal statute that directly correlates to this\nintentional tort.\nFalse Imprisonment:\nFalse imprisonment is an intentional act by the defendant that causes the confinement of the\nplaintiff without the plaintiff\xe2\x80\x99s consent. The plaintiff must have no known reasonable means of\nescape. The confinement can be in the form of fixed barriers like a room or just a corner. False\nimprisonment is an intentional tort to a person. It often involves store security who detains people\nsuspected with shoplifting. It is most similar to criminal statutes of false imprisonment.\nDEFENSES TO INTENTIONAL TORTS:\nConsent:\nThe consent by a plaintiff to a defendant\xe2\x80\x99s intentional tort, whether orally or in writing, is a\nlegitimate defense. For example, being a participant in fight club would be considered giving your\nconsent. (It should be noted that we have just broken the first rule of fight club.) Consent can also\nbe implied. By being in the middle of a crowd as you try to enter a concert, you have giving your\nimplied consent that you will be touched to some extent by others in the crowd. Your action for\nbattery in such a situation would probably fail by the fact that you gave your implied consent to\nthe unwanted touching.\nSelf-Defense:\n\n226\n\n\x0cA defendant in certain situations may have a claim of self-defense to an intentional tort. The law\nrecognizes that we have the right to defend ourselves by using physical force when we reasonably\nbelieve that we are going to suffer imminent harm or offensive contact. There are limits to selfdefense. A person can only use the amount of force necessary to protect themselves or protect a\nthird person. In NYS, a person has the duty to leave a situation if possible rather than use physical\nforce in self-defense. The only situation that this does not apply to is the defense of one\xe2\x80\x99s home.\nA homeowner has no duty to retreat or leave their home. When a person is in their home, they may\nuse physical force to defend their person and/or property.\nImmunity:\nUnder both the state and federal constitutions, government officials may be immune for certain\nlawsuits. This is called sovereign immunity. The Eleventh Amendment of the U.S. Constitution\ngrants the states sovereign immunity from being sued in federal courts unless they give their\nconsent. For example, in NYS, government officials are entitled to qualified immunity when they\nact in their governmental capacity and owe no special duty to a plaintiff. Actions by the police,\nfirefighters, and EMTs fall into this category. If government official actions are more a proprietary\nfunction, they can be sued like anyone else. Proprietary functions are generally when the\ngovernment is doing much the same thing a private enterprise would traditionally do.\nStatutes of Limitations:\nAs discussed in the negligence section above, there are statutes of limitations for intentional\ntorts. Assault, Battery, Defamation, False Imprisonment, and Intentional Infliction of Emotional\nDistress all have one-year statute of limitations under CPLR \xc2\xa7215 (3).\nSTRICT LIABILITY:\nStrict Liability is a very limited theory of tort liability. It has nothing to do with negligence or\nintent. It applies to situations that are abnormally dangerous. This would include those who work\nwith explosives, fireworks, radioactive materials, or own or control certain dangerous animals. If\na person is injured by a defendant while engaged in these activities, liability is imposed regardless\nof a defendant\xe2\x80\x99s intentions or lack of negligence. The law imposes liability as a matter of public\npolicy. In NYS, strict liability even applies to products liability cases.\nThe New York\xe2\x80\x99s Pattern Jury Instruction that defines strict products liability is Section 2:120\nwhich states: \xe2\x80\x9cA (manufacturer, wholesaler, distributor, retailer, processor of materials, maker of\na component part) that sells a product in a defective condition is liable for injury that results from\nuse of the product when the product is used for its intended or reasonably foreseeable purpose. A\nproduct is defective if it is not reasonably safe \xe2\x80\x94 that is, if the product is so likely to be harmful\nto (persons, property) that a reasonable person who had actual knowledge of its potential for\nproducing injury would conclude that it should not have been marketed in that condition.\xe2\x80\x9d\nPRODUCTS LIABILITY:\nDepending on the situation, a products liability claim in NYS may be based in negligence,\nintentional tort, strict liability, and even contract law for breach of warranties. It includes defects\nin condition, in manufacturing, in design, and for insufficient or inadequate warnings. The Liebeck\nv McDonald\xe2\x80\x99s discussed above in the punitive damages section was a products liability case. One\n227\n\n\x0cof the claims by the plaintiff Mrs. Liebeck was that the product, coffee, was defective and\nunreasonably dangerous because it was too hot, which was direct factor in causing her substantial\ninjuries. The Liebeck v McDonald\xe2\x80\x99s case was under the state of New Mexico law.\nNew York is a strict products liability state holding the seller, manufacturer, and others in the line\nof distribution of a defective consumer product, strictly liable when said defective product is a\nsubstantial factor in causing a plaintiff harm or injury because the product is not reasonably safe.\nWhile most courts throughout the country use the standard of an unreasonably dangerous product\nas set forth in the Restatement of Torts, Section 402A, New York does not.\nThe NY Court of Appeals in the Voss v. Black & Decker Manufacturing Company 59 N.Y.2d 102\n(1983) established a lower standard for strict products liability ruling \xe2\x80\x9cIn order to establish a prima\nfacie case in strict products liability for design defects, the plaintiff must show that the\nmanufacturer breached its duty to market safe products when it marketed a product designed so\nthat it was not reasonably safe and that the defective design was a substantial factor in causing\nplaintiff\'s injury.\xe2\x80\x9d [59 N.Y.2d 108] The NYS standard is an advantage to a plaintiff because\nrequiring that a jury find a product must be unreasonable safe implies to a jury that a product must\nsomehow be extra hazardous. The standard of not being reasonable safe does not.\nDOG BITE LAWSUITS AND STRICT LIABILITY:\nAccording to a study by the Insurance Information Institute and State Farm in 2015, dog bites\naccounted for one third of all homeowner claims. The study found 880 claims for dog bites in NYS\nwith the average damages award being about $44,000.\nNYS does have strict liability for plaintiffs who are injured when bitten by a dog. However,\nplaintiffs in dog bite cases in NYS must prove that an owner had prior knowledge before the dog\nbit the plaintiff, of the dog\xe2\x80\x99s vicious propensity. The New York Court of Appeals in the case of\nCollier v Zambito, 1 NY3d 444 (2004) ruled that a jury is entitled to consider any evidence of\nvicious propensity with a prior bite being only one type of such evidence. The Court pointed out\nthat vicious propensity can be proven by something less than an actual prior bite. The court gave\nexamples such as a dog that growls, snaps, or bares its teeth could be evidence of vicious\npropensity. Other actions like jumping up on people and/or knocking people off their bicycles\ncould be interpreted by a jury as vicious propensity.\nThe New York Pattern Jury Instruction 2:220 defines vicious propensity as \xe2\x80\x9ca natural inclination\nor usual habit to act in a way that endangers people or property\xe2\x80\x9d. The plaintiff also has to prove\nthe dog owner knew, or should have known, of the vicious propensities. A dog owner is\nresponsible for any injury on a strict liability basis if the owner continues to harbor the dog with\nknowledge of the dog\xe2\x80\x99s vicious propensities. The requirement of vicious propensity applies to\nother animals besides dogs. In NYS, there is no claim in negligence for dog bites.\nThere is also strict liability under the Section 121 of the Agricultural & Markets statute which\nmakes the "owner or lawful custodian" of a "dangerous dog" "strictly liable" for medical costs\nresulting from "injury" caused by such dog to a person, "companion animal," farm animal, or\n"domestic animal."\n\n228\n\n\x0cTHE PATH OF A NEGLIGENCE CASE:\nWhile similar in some ways to the path of criminal case, there are significant differences. First, the\nattorneys are not working for the government like a district attorney in a criminal case. The path\nof a typically negligence case is as follows:\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nSummons & Complaint\nService of the Summons and Complaint\nAnswer\nDiscovery\nDeposition/Examination Before Trial\nRequest for Judicial Intervention\nMotion for Summary Judgment\nNote of Issue\nSettlement\nTrial\n\nSummons & Complaint:\nIn NYS, the filing of a summons and complaint is the start of a civil action. A summons is a\ndocument that states a lawsuit against a defendant has been started against her/him. It also states\nthat the defendant must answer the complaint. The complaint is a document that sets for the\ngrounds, facts, and damages required to establish a lawsuit against the named defendant. It is\nknown as a pleading. A plaintiff must file a summons and complaint with the county clerk where\nthe lawsuit will be brought. The venue, or place the lawsuit is brought, must be proper. The proper\nvenue is set out by statute in the CPLR. Once the summons is filed, and the fees paid, the county\nclerk will issue an Index Number that will be added to the summons and all pleadings of the\nlawsuit.\nService of the Summons & Complaint:\nOnce the index number is purchased and the lawsuit has been started by filing the summons and\ncomplaint with the county clerk, the summons and complaint must be properly served on the\ndefendant. Proper service is set out by statute in the CPLR. Depending on the situation, the statute\nmay require personal service on a defendant or allow service by mail. A plaintiff cannot serve a\nsummons and complaint on a defendant themselves. The CPLR establishes who is allowed to serve\nthese pleadings. Most plaintiffs use a professional process service person or company.\nAnswer:\nOnce a defendant is served with a summons and complaint, they will have either twenty or thirty\ndays, depending on how they were served, to provide their answer to the complaint. The answer is\na document that is a response to the complaint. It is a pleading. The failure to serve this answer in\ntimely manner could result in a default against the defendant, which means the plaintiff will be\ngranted by a court the relief they are demanding against the defendant.\nDiscovery:\nDiscovery is the process by which both parties are required upon demand by the other, to provide\ninformation that relates to the lawsuit. The law allows and demands that the parties cooperate with\neach other in this process. There are many forms of discovery, and the process is extremely\n229\n\n\x0cimportant to both parties in a lawsuit. Both parties need access to information that only the other\nparty has control over to either prove their case or properly defend against. For example, in an\nautomobile negligence case, the plaintiff may be claiming that the defendant was distracted while\ndriving because he was texting on his cell phone. The records that could prove whether this\nassertion is accurate are under the control of the cell service provider of the defendant. The plaintiff\nmay demand upon the defendant a discovery demand that the defendant obtain and forward said\nrecords to the plaintiff. In the same lawsuit, the defendant may assert that the plaintiff is not as\ninjured as he claims. and serve a discovery demand on the plaintiff requiring the plaintiff to submit\nto a medical examination by the defendant\xe2\x80\x99s doctor.\nDeposition/Examination Before Trial:\nThe taking of a deposition or examination before trial (EBT) is one of the most significant parts of\na lawsuit and discovery. This is typically the first time in the process that the parties and their\nattorneys will see each other. The party being deposed will be put under oath and will be asked\nquestions by the opposing counsel. Lying at a deposition is subject to perjury penalties. The\nproceeding will be before a stenographer. The stenographer will record precisely word for word\nwhat is being asked, answered, and said at the EBT. The stenographer will then create a written\ntranscript that can be used at trial by either party. EBTs are an extremely important part of the\nprocess of a civil lawsuit.\nRequest for Judicial Intervention:\nThe Request for Judicial Intervention is a formal legal document filed with the county clerk,\nusually by the plaintiff, asking the court assigned to the lawsuit to now get involved. The court\nwill set up times for the parties to meet with the court to determine where the parties are in the\nprocess, and whether the court needs to get involved in moving the process along. At some point,\nthe court will inquire from the parties whether there is a possibility of settlement. If so, the court\nmay get involved in getting the parties together to move the settlement along to a mutually\nagreeable conclusion.\nMotion for Summary Judgment:\nA motion for a summary judgment is an application before the court by either party. The parties\nin a motion for summary judgment are asking the court to find that there is no question of fact for\na jury to decide and that as a matter of law the judge should therefore rule in their favor thus ending\nthe case. The plaintiff would be asking for a judgment against the defendant without the need to\ngo to trial, while the defendant would be asking for a judgment against the plaintiff dismissing the\ncase.\n\nNote of Issue:\nOnce the entire discovery phase of the lawsuit is completed and the parties feel they are ready for\ntrial, the plaintiff will file a formal document known as a Note of Issue with the county clerk. This\nwill put the case on the court\xe2\x80\x99s trial calendar. It would not be unusual for it to take up to eighteen\nmonths or more to for a case to get to trial once the Note of Issue is filed.\nSettlement:\n230\n\n\x0cSettlement is the process where the parties agree to a result between themselves. It can occur\nanywhere in the path of a lawsuit, even after a jury verdict. The strength or weakness of a case\ndetermines whether a lawsuit will settle or not. It also determines the amount of a settlement. The\nfunds available also greatly influence the settlement process. Is there insurance coverage involved\nand if so, what are the limits of said insurance policy? For example, a serious injury suffered by a\nplaintiff without the ability to collect the money damages that would be appropriate for such an\ninjury because the defendant is not adequately insured and financially incapable, may affect the\nsettlement process. Just as it is the case that most criminal defendants will take a plea bargain\ninstead of going to trial, so too will the vast majority of parties in civil lawsuits agree to a settlement\nbefore trial.\nTrial:\nA civil negligence trial will be similar in format to a criminal trial. There will be a jury selection\nwhich is the same as that of a criminal trial. For a civil case, there are six jurors. The judge will\nspeak to the jury at the start of the trial to explain to them what their role is, the rules they must\nfollow, and how the trial will proceed. The attorneys will have the opportunity to make opening\nstatements to the jury. Since the plaintiff has the burden of proof, the plaintiff\xe2\x80\x99s attorney will go\nfirst, followed by the defense attorney. The plaintiff will then present evidence through various\nwitnesses with the defense attorney having the opportunity to cross exam said witnesses. Once the\nplaintiff is done with their side of the case, the defense has the opportunity to present their\nwitnesses and evidence in their defense. There will then be closing statements to the jury with the\nplaintiff going first. The judge will then charge the jury with the law. They jury will then deliberate\nand deliver a verdict. The standard of proof for a civil negligence case is preponderance of the\nevidence. The jury verdict does not have to be unanimous, just five of the six jurors are needed to\ndecide a case and deliver a verdict. The verdict will include the remedy. If the plaintiff wins, the\namount of damages will be decided by jury. If the defendant wins, the case is dismissed.\nThere are situations in civil trials where both parties are suing each other. It makes the trial more\ncomplicated, but the process and format are basically the same.\nWHAT ARE THE THREE MOST COMMON CIVIL REMEDIES?\nThe most common remedy in civil cases is money damages. However, there are two other types\nof remedies available to plaintiffs and civil courts; injunctions and specific performance orders.\nInjunction:\nAn injunction is a court order telling a defendant to stop doing something. For example, a plaintiff\nmay sue a defendant developer asking the court to issue an injunction to stop the developer from\ncutting down trees on land the developer owns because the plaintiff thinks the developer is hurting\nwildlife, and therefore violating the law by doing so. Sometimes, judges will issue a preliminary\ninjunction to stop certain actions until the judge can make final more informed decision. When\nthis happens, the judge will give the parties\xe2\x80\x99 time to present evidence to support their respective\npositions before the judge decides on whether to issue a permanent injunction.\nSpecific Performance:\nSpecific performance is an order from the court telling a defendant to actually do something. While\nrare, specific performance is appropriate when money damages just won\xe2\x80\x99t cut it. For example, if\nthe object of the lawsuit is a unique antique which the defendant now refuses to sell to the plaintiff\n231\n\n\x0cpursuant to a valid contract between the parties, the court would order the turning over of that\nspecific antique to the plaintiff pursuant to the terms of the contract by issuing a specific\nperformance order.\nWORKERS\xe2\x80\x99 COMPENSATION:\nWhat happens when an employee is injured on the job? For these types of cases, New York State\n(and most other states) has adopted a no-fault system called workers\xe2\x80\x99 compensation. In workers\xe2\x80\x99\ncompensation cases, an administrative board decides if the injury was sustained in the course of\nemployment, and, if it was, the worker will receive a fixed award, predetermined by a regulated\nschedule, for both wage replacement and medical expenses. A worker is not required to hire an\nattorney, although many do.\nTHE ROLE OF INSURANCE IN TORT LAW:\nLawsuits can be expensive and stressful. Insurance protection can often be purchased to protect a\nperson or business from potential monetary damages from some tort lawsuits. It should be noted\nthat there is no insurance available for intentional torts.\nCommon examples of insurance coverage include:\n\xc2\xa7\n\nHomeowners Insurance\no Most homeowners have insurance not only to protect them from fire\ndamage, but from lawsuits such as a guest who trips and falls on their\nproperty or is bitten by their pet dog.\n\n\xc2\xa7\n\nMalpractice Insurance\no Most doctors and hospitals have insurance to protect and defend them from\nlawsuits brought by patients who sue for inadequate or improper medical\ncare. Lawyers and other professionals also carry malpractice insurance.\n\n\xc2\xa7\n\nBusiness Liability Insurance\no Businesses usually have insurance to protect them from lawsuits brought by\ncustomers for slip and fall cases, false arrest claims, or product liability.\n\n\xc2\xa7\n\nWorkers\xe2\x80\x99 Compensation Insurance\no Employers in NYS are required to have this insurance to provide coverage\nfor their employees that are injured while on the job.\n\n\xc2\xa7\n\nAutomobile Insurance\no In NYS, all registered vehicles are required by law to have insurance.\nAutomobile accident lawsuits are regulated by the NYS no-fault insurance\nstatute.\n\nNO-FAULT AUTOMOBILE INSURANCE\nIn 1974, NYS passed Article 51 of the New York State Insurance Law, formally titled \xe2\x80\x9cMotor\nVehicle Reparations Act\xe2\x80\x9d, and commonly known as \xe2\x80\x9cno-fault.\xe2\x80\x9d\n\n232\n\n\x0cUnder this law, anyone registering a motor vehicle in New York State is required to have at least\nthe minimal amount of automobile insurance coverage for that vehicle. If that vehicle is involved\nin any kind of an auto accident, whether they are the driver or someone else with their permission\nis, their insurance carrier will be responsible up to $50,000 of the medical expenses and economic\nlosses caused by the accident to the driver and occupants of that vehicle regardless of who is at\nfault. Thus, we get the name no-fault insurance.\nUnder this statute, lawsuits for automobile accident cases are only allowed when a plaintiff is\nseriously injured, as defined by the statute. Insurance Law \xc2\xa7 5104(a), (b) provides that a plaintiff\nin a personal injury action arising out of negligence in the use or operation of a motor vehicle must\nestablish that he/she has incurred a basic economic loss exceeding $50,000 or must establish that\nhe/she has suffered \xe2\x80\x9cserious injury\xe2\x80\x9d.\nInsurance Law \xc2\xa7 5102(d) defines serious injury as personal injury which results in one of the\nfollowing:\n\xe2\x80\xa2 Death\n\xe2\x80\xa2 Dismemberment\n\xe2\x80\xa2 Significant disfigurement\n\xe2\x80\xa2 Fracture\n\xe2\x80\xa2 Loss of a fetus\n\xe2\x80\xa2 Permanent loss of use of a body organ, member, function, or system\n\xe2\x80\xa2 Permanent consequential limitation of a body organ or member\n\xe2\x80\xa2 Significant limitation of use of a body function or system\n\xe2\x80\xa2 Medically determined injury or impairment of a non-permanent nature which prevents the injured\nperson from performing substantially all of the material acts which constitute such person\xe2\x80\x99s usual\nand customary daily activities for not less than 90 days during the 180 days immediately following\nthe occurrence of the injury or impairment.\nThe minimal amount of liability coverage you can purchase in NYS is:\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\n$10,000 for property damage for a single accident\n$25,000 for bodily injury and $50,000 for death for a person involved in an accident\n$50,000 for bodily injury and $100,000 for death for two or more people in an accident\n\nThere are three objectives of this law:\n(1) Reduce automobile accident litigation to only the most serious injured plaintiffs.\n(2) Provide automobile accident victims with more prompt compensation for their economic losses\ncaused by the accident.\n(3) Lower the cost of automobile insurance, since there would be less litigation.\nDO ALL DRIVERS CARRY THE MINIMUM INSURANCE?\nNo. Many drivers purchase more insurance than the minimal insurance required by law. They do\nso in case they are responsible for an accident and the injured plaintiff is seriously injured or killed.\nIn those situations, the damages can easily exceed the minimum insurance amounts. If this\nhappens, the injured plaintiff can sue and obtain a judgment for more than the insurance amount.\nThe defendant is responsible for damages that exceed their insurance coverage.\n233\n\n\x0cThis could place the defendant in financial jeopardy if they have to pay such judgment out of their\nown assets. If cash and assets are insufficient to cover the judgment, a long-term wage garnishment\ncould be placed on the insured wages as a collection tool.\nDOES NEW YORK MANDATE COVERAGE TO PROTECT YOUR OWN VEHICLE?\nNo. NYS does not require what is called collision insurance. However, most lenders and lease\nagreements do require the owner or person registering the vehicle to purchase said insurance.\nCollision insurance pays for damage to your vehicle caused by an accident. It does not take into\nconsideration fault in providing payment or repairs to the vehicle. However, fault could affect\nfuture premiums or cost of your insurance. Most collision insurance requires what is called a\ndeductible amount. This is the amount you as the insured must pay first for damages to your vehicle\nbefore the carrier. Typical deductible amounts are $500 to $1,000. Collision insurance will cover\nthe repairs to your vehicle even in situations where you may accidently hit a tree or post, and no\nother vehicle is involved.\nThere are also other coverages a consumer can purchase as part of an automobile insurance\npolicy. Typically, glass coverage, car rental costs, and comprehensive coverage for damages\ncaused by fire, theft, and vandalism are available.\nAll NYS automobile insurance policies have uninsured coverage provisions. In the event you are\nseriously injured by a vehicle that is uninsured, your insurance carrier will reimburse you up to\nthe amount of uninsured coverage provided in your policy. There is also underinsured coverage\navailable for purchase in the event the defendant you are suing has coverage that does not meet\nthe amount of your damages.\nWHAT IS NOT COVERED BY NEW YORK\xe2\x80\x99S NO-FAULT INSURANCE?\nWhile NYS\xe2\x80\x99s no-fault insurance covers the majority of every-day insurance claims, there several\nexclusions.\na) Injuries to a driver or passenger of an uninsured vehicle.\nb) Injuries to a driver or passenger who acts intentionally causing his/her own personal\ninjury.\nc) Injuries to an intoxicated driver or a driver who is impaired by drug use.\nd) Injuries to the driver of a stolen car.\ne) Injuries to a driver operating a car in a race or speed test.\nf) Injuries sustained by a driver who is committing a felony or fleeing from pursuing law\nenforcement officer.\ng) Injuries to a driver or passenger of a motorcycle.\nWhere a policy limits the insurer\xe2\x80\x99s liability to certain designated uses of the insured vehicle, like\npersonal use, then damages will not be paid by the insurer if, at the time of the accident, the vehicle\nis being used for other purposes like delivering pizzas or as an Uber driver.\nMOTORCYCLE INSURANCE:\nMotorcycle insurance and liability rules in New York are very different than that for cars. A\nmotorcycle is not a motor vehicle as defined under the no-fault insurance law. Therefore, a\n234\n\n\x0cmotorcyclist is not a covered person under the no-fault insurance law which also means they are\nnot entitled to the medical and lost wage benefits of said law. However, motorcyclists injured in\nmotor vehicle accidents are also not subject to the serious injury threshold that motor vehicle\ndrivers are subject to. So, a person injured on a motorcycle can bring a claim against the defendant\ndriver even for minor injuries that would not pass the no-faulty insurance threshold.\n\nReferences:\nGair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf. (2018, July 24).\nRetrieved July 27, 2018, from https://www.gairgair.com/motorcycle-accidents.html\nJeffries, R. N. (2014). Torts and personal injury law for the paralegal: Developing workplace\nskills. Boston: Pearson.\nJustia Law. (n.d.). Retrieved July 26, 2018, from https://law.justia.com/\nNew York State. (n.d.). New York State Unified Court System. Retrieved July 26, 2018, from\nhttp://nycourts.gov/\nPogue, D. L., Clifford, E., & Schwartz, A. L. (2009). Understanding New York Law, 2013-14.\nUpstate Legal Publishers.\nPotoski, L. (2018, May 30). New York State Insurance Requirements. Retrieved July 27, 2018,\nfrom https://dmv.ny.gov/insurance/insurance-requirements\nSerious Injury Threshold. (n.d.). Retrieved July 27, 2018, from\nhttps://www.nysba.org/workarea/DownloadAsset.aspx?id=28534\nStaff, L. (2017, June 14). Tort. Retrieved July 27, 2018, from\nhttps://www.law.cornell.edu/wex/tort\nYour voice for a more bicycle-friendly New York State since 1990. (2016) Retrieved July 27,\n2018, from http://www.nybc.net/understanding-no-fault-laws-in-new-york/\nUnderstanding No Fault Laws in New York. Retrieved July 27, 2018, from\nhttp://www.nybc.net/understanding-no-fault-laws-in-new-york/\n\n235\n\n\x0cCHAPTER 9\nMARRIAGE, DIVORCE AND FAMILY LAW\nINTRODUCTION\nThis chapter discusses legal issues relating to marriage, divorce, and various family court matters\nin NYS.\nFAMILY\nWhile the traditional family of a wife, husband, and children constitutes the majority of \xe2\x80\x9cfamilies\xe2\x80\x9d\nin the United States, the law also recognizes that families are blended, single-parent, same-sex\nspouses/parents, and a host of other variations. While it is now very common for couples to live\ntogether, marriage is still an option many couples take part in. Part I will discuss what constitutes\na valid marriage in New York State. Part II will discuss annulments, divorce, and all the issues\ntypically encountered in divorce cases. Part III will discuss family law matters pertaining to\nadoption, paternity, and juveniles in Family Court accused of crimes.\n\nPART I: MARRIAGE\nWhat constitutes a valid marriage in NYS?\nDomestic Relations Law (DOM) Sections 5-25 spell out the rules for getting married in New York.\n\xe2\x80\xa2 Is a marriage license required? Yes. A couple who intends to be married in New York\nmust apply in person for a marriage license to any town or city clerk in NYS. That\napplication must be signed by both parties in the presence of the town or city clerk. A\nmarriage ceremony cannot take place until 24 hours after the license is time-stamped. The\nlicense is valid for 60 days, beginning the day after it is issued.\n\xe2\x80\xa2\n\nIs a blood test required? No. Blood testing is not required to get married in NYS.\n\n\xe2\x80\xa2\n\nWhat is the age requirement? With the consent of both parents (in some instances only\none parent\xe2\x80\x99s consent is necessary) and the approval by a Supreme Court judge (in some\ninstances a Family Court judge), you can get married at age 17. Otherwise it is 18 years of\nage.\n\n\xe2\x80\xa2\n\nDo you have to be single to get married in NYS? Yes, you must be single. This is true\nin every state. Polygamy is illegal in the United States.\n\n\xe2\x80\xa2\n\nCan you get married if you have been married before? Yes. If you have been married\nand divorced, you must provide proof of the divorce.\n\n\xe2\x80\xa2\n\nFamilial Restrictions: NYS does not allow a marriage between an ancestor and\ndescendant, siblings whether full or half-blood, an uncle and niece or nephew, or an aunt\nand niece or nephew.\n\n236\n\n\x0cCourt of Appeals of New York.\nHuyen V. NGUYEN, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General,\nRespondent.\nNY Slip Op 07290\nDecided: October 28, 2014\nMichael E. Marszalkowski, for petitioner. Michael C. Heyse, for respondent.\nThe United States Court of Appeals for the Second Circuit has asked us whether a marriage\nbetween a half-uncle and half-niece is void as incestuous under Domestic Relations Law \xc2\xa7 5(3). I\nagree, for the following reasons, that we should answer that it is not.\nI\nPetitioner is a citizen of Vietnam. In January of 2000, at the age of 19, she was married in\nRochester, New York to Vu Truong, who was 24 and a naturalized American citizen. Later that\nyear, petitioner was granted the status of a conditional permanent resident in the United States on\nthe basis of her marriage.\nAccording to the factual findings of the United States Board of Immigration Appeals, which the\nSecond Circuit accepted as supported by substantial evidence, petitioner\'s mother was born in 1950\nto a woman named Nguyen Thi Ba. Twenty-five years later, Nguyen Thi Ba gave birth to Vu\nTruong. Petitioner\'s mother and Vu Truong had different fathers. Thus, petitioner\'s mother was Vu\nTruong\'s half-sister, and petitioner is his half-niece.\nAn immigration judge ordered petitioner removed from the country on the ground that her\npurported marriage to an American citizen was void, and the Board of Immigration Appeals\naffirmed. Petitioner sought review of that ruling in the Second Circuit, and the Second Circuit\ncertified the following question to us:\n\xe2\x80\x9cDoes section 5(3) of New York\'s Domestic Relations Law void as incestuous a marriage between\nan uncle and niece \xe2\x80\x98of the half blood\xe2\x80\x99 (that is, where the husband is the half-brother of the wife\'s\nmother)?\xe2\x80\x9d\nII\nSection 5 of the Domestic Relations Law reads in full:\n\xe2\x80\x9cA marriage is incestuous and void whether the relatives are legitimate or illegitimate between\neither:\n\xe2\x80\x9c1. An ancestor and a descendant;\n\xe2\x80\x9c2. A brother and sister of either the whole or the half blood;\n237\n\n\x0c\xe2\x80\x9c3. An uncle and niece or an aunt or nephew.\n\xe2\x80\x9cIf a marriage prohibited by the foregoing provisions of this section be solemnized it shall be void,\nand the parties thereto shall each be fined not less than fifty nor more than one hundred dollars and\nmay, in the discretion of the court in addition to said fine, be imprisoned for a term not exceeding\nsix months. Any person who shall knowingly and wilfully solemnize such marriage, or procure or\naid in the solemnization of the same, shall be deemed guilty of a misdemeanor and shall be fined\nor imprisoned in like manner.\xe2\x80\x9d\nWe must decide whether subdivision 3 of this statute should be read to include a half-uncle and\nhalf-niece (or half-aunt and half-nephew). There is something to be said on both sides of this\nquestion.\nIn common speech, the half-brother of one\'s mother or father would usually be referred to as an\nuncle, and the daughter of one\'s half-sister or half-brother would usually be referred to as a niece;\nthe terms \xe2\x80\x9chalf-uncle\xe2\x80\x9d and \xe2\x80\x9chalf-niece\xe2\x80\x9d are not in common use. Thus, it is perfectly plausible to\nread subsection 3 as including half-blood relatives. On the other hand, the authors of Domestic\nRelations Law \xc2\xa7 5(2), when prohibiting brother-sister marriages, went to the trouble of adding the\nwords \xe2\x80\x9cof either the whole or the half blood.\xe2\x80\x9d No similar words appear in section 5(3), arguably\nimplying that the Legislature did not intend the uncle-niece prohibition to reach so far. The statute\nis ambiguous. Perhaps the likeliest inference is that the authors of section 5(3) gave no particular\nthought to the half-uncle/half-niece question, since if they had they could easily have clarified it\neither way.\nNor does New York case law point to any clear conclusion. In Audley v. Audley, (196 App.Div.\n103 [1st Dept 1921]), the Appellate Division held a marriage between a half-uncle and a half-niece\nto be void under section 5(3). But in Matter of Simms, (26 N.Y.2d 163, 166 [1970]) we, without\ndeciding the question, expressed doubt about Audley\'s conclusion:\n\xe2\x80\x9cIf the Legislature had intended that its interdiction on this type of marriage should extend down\nto the rather more remote relationship of half blood between uncle and niece, it could have made\nsuitable provision. Its failure to do so in the light of its explicit language relating to brothers and\nsisters suggests it may not have intended to carry the interdiction this far.\xe2\x80\x9d\nThus, there is a holding from the Appellate Division pointing in one direction, and dictum from\nthis Court pointing in the other. Neither is binding on us. I would resolve the issue by considering\nthe nature and the purpose of the statute we interpret.\nDomestic Relations Law \xc2\xa7 5 is in part a criminal statute: it says that the participants in a prohibited\nmarriage may be fined, and may be imprisoned for up to six months. Penal Law \xc2\xa7 255.25, using\nlanguage very similar to that of Domestic Relations Law \xc2\xa7 5 (\xe2\x80\x9cancestor, descendant, brother or\nsister of either the whole or half blood, uncle, aunt, nephew or niece\xe2\x80\x9d), makes entry into a\nprohibited marriage a class E felony. Where a criminal statute is ambiguous, courts will normally\nprefer the more lenient interpretation, and the courts of several other states have followed that rule\n238\n\n\x0cin interpreting their criminal laws not to prohibit relationships between uncles and nieces, or aunts\nand nephews, of the half blood (State v. Craig, 254 Kan 575, 580, 867 P.2d 1013, 1016 [1994];\nPeople v. Baker, 69 Cal2d 44, 50, 442 P.2d 675, 678 [1968]; State v. Bartley, 304 Mo 58, 62, 263\nSW 95, 96 [1924] ). The Government says that these cases are distinguishable because they were\ncriminal cases; but we are here interpreting a statute that applies in both civil and criminal cases,\nand it would be strange at best to hold that the same words in the same statute mean different things\nin different kinds of litigation.\nI also conclude that the apparent purpose of section 5(3) supports a reading that excludes halfuncle/half-niece marriages from its scope. Section 5 as a whole may be thought of as serving two\npurposes: it reflects long-held and deeply-rooted values, and it is also concerned with preventing\ngenetic diseases and defects. Sections 5(1) and 5(2), prohibiting primarily parent-child and\nbrother-sister marriages, are grounded in the almost universal horror with which such marriages\nare viewed-a horror perhaps attributable to the destructive effect on normal family life that would\nfollow if people viewed their parents, children, brothers and sisters as potential sexual partners. As\nthe Appellate Division explained in Matter of May, (280 App.Div. 647, 649 [3d Dept 1952], aff\'d\n305 N.Y. 486 [1953]), these relationships are \xe2\x80\x9cso incestuous in degree as to have been regarded\nwith abhorrence since time immemorial.\xe2\x80\x9d\nThere is no comparably strong objection to uncle-niece marriages. Indeed, until 1893 marriages\nbetween uncle and niece or aunt and nephew, of the whole or half blood, were lawful in New York\n(see L 1893, ch. 601; Audley, 196 AD at 104). And sixty years after the prohibition was enacted\nwe affirmed, in May, a judgment recognizing as valid a marriage between a half-uncle and halfniece that was entered into in Rhode Island and permitted by Rhode Island law. It seems from the\nAppellate Division\'s reasoning in May that the result would have been the same even if a full uncle\nand full niece had been involved. Thus, Domestic Relations Law \xc2\xa7 5(3) has not been viewed as\nexpressing strong condemnation of uncle-niece and aunt-nephew relationships.\nThe second purpose of section 5\'s prohibition of incest is to prevent the increased risk of genetic\ndisorders generally believed to result from \xe2\x80\x9cinbreeding.\xe2\x80\x9d (It may be no coincidence that the\nbroadening of the incest statute in 1893 was roughly contemporaneous with the development of\nthe modern science of genetics in the late 19th century.) We are not geneticists, and the record and\nthe briefs in this case do not contain any scientific analysis; but neither party disputes the intuitively\ncorrect-seeming conclusion that the genetic risk in a half-uncle, half-niece relationship is half what\nit would be if the parties were related by the full blood. Indeed, both parties acknowledged at oral\nargument that the risk in a half-uncle/half-niece marriage is comparable to the risk in a marriage\nof first cousins. First cousins are allowed to marry in New York, and I conclude that it was not the\nLegislature\'s purpose to avert the similar, relatively small, genetic risk inherent in relationships\nlike this one.\nUnder our longstanding principles of statutory construction, I conclude that a marriage between a\nhalf-uncle and half-niece, or a half-aunt and half-nephew, is permissible in New York based on\nthe structure of Domestic Relations Law \xc2\xa7 5. As this Court observed in Matter of Simms, (26\nN.Y.2d 163 [1970]), the Legislature included language in subdivision two of this statute that\n239\n\n\x0cprohibits a marriage between a brother and sister of \xe2\x80\x9cthe half blood,\xe2\x80\x9d but there is no comparable\nclause in subdivision three voiding marriages between uncles and nieces or aunts and nephews.\nWhen the Legislature includes a condition in one provision but excludes it from another within the\nsame statute, there arises an \xe2\x80\x9cirrefutable inference\xe2\x80\x9d that the omission was intentional (Matter of\nRaynor v. Landmark Chrysler, 18 NY3d 48, 56 [2011] [internal quotation marks and citation\nomitted]; see also McKinney\'s Cons Laws of NY, Book 1, Statutes \xc2\xa7 240). Hence, the contrast in\nthe plain language of Domestic Relations Law \xc2\xa7 5(2) and (3) compels the conclusion that marriages\nbetween half-siblings are outlawed but marriages involving half-uncles and half-nieces or halfaunts and half-nephews are permissible.\nNevertheless, I write separately to emphasize that the Legislature may see fit to revisit this\nprovision. The record before us does not address the question of genetic ramifications for the\nchildren of these unions. Some of my colleagues assert that marriages between half-uncles and\nhalf-nieces, or half-aunts and half-nephews, are no different than marriages between first cousins.\nPerhaps there is no genetic basis for precluding such unions, but this Court was not presented with\nany scientific evidence upon which to draw an informed conclusion on this point.\nFrom a public policy perspective, there may be other important concerns. Such relationships could\nimplicate one of the purposes underlying incest laws, i.e., \xe2\x80\x9cmaintaining the stability of the family\nhierarchy by protecting young family members from exploitation by older family members in\npositions of authority, and by reducing competition and jealous friction among family members\xe2\x80\x9d\n(Benton v. State, 265 Ga 648, 650, 461 S.E.2d 202, 205 [1995, Sears, J., concurring]). Similar\nintrafamilial concerns may arise regardless of whether the uncle or aunt in the marriage is of whole\nor half blood in relation to the niece or nephew. The issue of unequal stature in a family or cultural\nstructure may not be implicated in this case but certainly could exist in other contexts, and a\nnumber of states have retained statutory prohibitions involving such marriages.* These\nconsiderations are more appropriately evaluated in the legislative process.\nFOOTNOTES\nFOOTNOTE. (see Ala Code \xc2\xa7 13A\xe2\x80\x9313\xe2\x80\x933 [a][4]; Alaska Stat Ann \xc2\xa7\xc2\xa7 11.41.450[a] [3];\n25.05.021[2]; Colo Rev Stat Ann \xc2\xa7 14\xe2\x80\x932\xe2\x80\x93110[1][c]; 750 Ill Comp Stat Ann \xc2\xa7 5/212 [a][3]; Ky Rev\nStat Ann \xc2\xa7 530.020[1]; La Civ Code Ann art 90[A] [2]; Minn Stat Ann \xc2\xa7 517.03[3]; Mont Code\nAnn \xc2\xa7 40\xe2\x80\x931\xe2\x80\x93401[1][c]; NJ Stat Ann \xc2\xa7 37:1\xe2\x80\x931[a], [b]; ND Cent Code Ann \xc2\xa7 14\xe2\x80\x9303\xe2\x80\x9303[3]; Or Rev\nStat Ann \xc2\xa7 106.020 [2]; Tex Fam Code Ann \xc2\xa7 6.201[3], [4]; Utah Code Ann \xc2\xa7 76\xe2\x80\x937\xe2\x80\x93102[1][b][i];\nVa Code Ann \xc2\xa7 20\xe2\x80\x9338.1[a][3]; Wash Rev Code \xc2\xa7 26.04.020[1][b]; W Va Code \xc2\xa7 48\xe2\x80\x932\xe2\x80\x93302[a],\n[b]; Wis Stat Ann \xc2\xa7 765.03[1] ).\nChief Judge LIPPMAN and Judges GRAFFEO, READ, SMITH, PIGOTT and RIVERA concur.\nJudge SMITH concurs in an opinion in which Chief Judge LIPPMAN and JUDGE Rivera concur.\nJudge GRAFFEO concurs in an opinion in which Judges READ and PIGOTT concur. Judge\nABDUS\xe2\x80\x93SALAAM took no part.\n\n240\n\n\x0cWho can perform the ceremony? A marriage ceremony must be performed by one of the\nindividuals specified in Section 11 of the New York State Domestic Relations Law which includes:\n\xe2\x80\xa2\n\nThe current or a former governor;\n\n\xe2\x80\xa2\n\nThe mayor of a city or village;\n\n\xe2\x80\xa2\n\nThe former mayor, the city clerk, or one of the deputy city clerks of a city of more than one\nmillion inhabitants;\n\n\xe2\x80\xa2\n\nA marriage officer appointed by the town or village board or the city common council;\n\n\xe2\x80\xa2\n\nA justice or judge of the following courts: the U.S. Court of Appeals for the Second Circuit,\nthe U.S. District Courts for the Northern, Southern, Eastern, or Western Districts of New\nYork, the New York State Court of Appeals, the Appellate Division of the New York State\nSupreme Court, the New York State Supreme Court, the Court of Claims, the Family Court,\na Surrogates Court, the Civil and Criminal Courts of New York City (including Housing\njudges of the Civil Court), and other courts of record;\n\n\xe2\x80\xa2\n\nA village, town, or county justice;\n\n\xe2\x80\xa2\n\nA member of the clergy or minister who has been officially ordained and granted authority\nto perform marriage ceremonies from a governing church body in accordance with the rules\nand regulations of the church body;\n\n\xe2\x80\xa2\n\nA member of the clergy or minister who is not authorized by a governing church body, but\nwho has been chosen by a spiritual group to preside over their spiritual affairs;\n\n\xe2\x80\xa2\n\nOther officiants as specified by Section 11 of the Domestic Relations Law.\n\nIf the marriage is being performed in NYC, the person performing the ceremony must be registered\nwith the City of New York. The officiant does not have to be a resident of New York State. The\nfact that you are a ship captain does not authorize one to perform marriage ceremonies in New\nYork State.\n\xe2\x80\xa2\n\nWhere must the marriage take place? A NYS marriage license is only good within New\nYork State.\n\n\xe2\x80\xa2\n\nWhat is required of the ceremony? There is no particular form or ceremony required,\nexcept that the parties must state in the presence of the officiant that they take each other\nas spouses.\n\n\xe2\x80\xa2\n\nAre witnesses required? In addition to the officiant, there must be a least one witness to\nthe wedding ceremony. There is no age requirement for the witness. However, the witness\nmust be old enough to be able to testify in court in the event that was to become necessary.\n\n\xe2\x80\xa2\n\nMust the parties be a man and a woman? No. In 2011, New York became the sixth state\nto legalize \xe2\x80\x9csame sex marriage\xe2\x80\x9d through legislation. However, the right for same sex\n241\n\n\x0ccouples to get married under the U.S. Constitution was decided in Obergefell v. Hodges,\n576 U.S.____, (2015), a landmark civil rights case in which the Supreme Court of the\nUnited States ruled in a 5\xe2\x80\x934 decision that the fundamental right to marry is guaranteed to\nsame-sex couples.\nSUPREME COURT OF THE UNITED STATES\nOBERGEFELL et al. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, et al.\n576 U.S. ____ (2015)\n(Case Syllabus edited by Author)\nMichigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and one\nwoman. The petitioners, 14 same-sex couples and two men whose same-sex partners are deceased,\nfiled suits in Federal District Courts in their home States, claiming that respondent state officials\nviolate the Fourteenth Amendment by denying them the right to marry or to have marriages\nlawfully performed in another State given full recognition. Each District Court ruled in petitioners\xe2\x80\x99\nfavor, but the Sixth Circuit consolidated the cases and reversed.\nHeld:\nThe Fourteenth Amendment requires a State to license a marriage between two people of the same\nsex and to recognize a marriage between two people of the same sex when their marriage was\nlawfully licensed and performed out-of-State.\n(a)Before turning to the governing principles and precedents, it is appropriate to note the history\nof the subject now before the Court.\n(1) The history of marriage as a union between two persons of the opposite sex marks the beginning\nof these cases. To the respondents, it would demean a timeless institution of marriage were\nextended to same-sex couples. But the petitioners, far from seeking to devalue marriage, seek it\nfor themselves because of their respect\xe2\x80\x94and need\xe2\x80\x94for its privileges and responsibilities, as\nillustrated by the petitioners\xe2\x80\x99 own experiences.\n(2) The history of marriage is one of both continuity and change. Changes, such as the decline of\narranged marriages and the abandonment of the law of coverture, have worked deep\ntransformations in the structure of marriage, affecting aspects of marriage once viewed as essential.\nThese new insights have strengthened, not weakened, the institution. Changed understandings of\nmarriage are characteristic of a Nation where new dimensions of freedom become apparent to new\ngenerations.\nThis dynamic can be seen in the Nation\xe2\x80\x99s experience with gay and lesbian rights. Well into the\n20th century, many States condemned same-sex intimacy as immoral, and homosexuality was\ntreated as an illness. Later in the century, cultural and political developments allowed same-sex\ncouples to lead more open and public lives. Extensive public and private dialogue followed, along\nwith shifts in public attitudes. Questions about the legal treatment of gays and lesbians soon\nreached the courts, where they could be discussed in the formal discourse of the law. In 2003, this\n242\n\n\x0cCourt overruled its 1986 decision in Bowers v. Hardwick, 478 U. S. 186, which upheld a Georgia\nlaw that criminalized certain homosexual acts, concluding laws making same-sex intimacy a crime\n\xe2\x80\x9cdemea[n] the lives of homosexual persons.\xe2\x80\x9d Lawrence v. Texas, 539 U. S. 558, 575. In 2012, the\nfederal Defense of Marriage Act was also struck down. United States v. Windsor, 570 U. S. ___.\nNumerous same-sex marriage cases reaching the federal courts and state supreme courts have\nadded to the dialogue.\n(b) The Fourteenth Amendment requires a State to license a marriage between two people of the\nsame sex.\n(1)The fundamental liberties protected by the Fourteenth Amendment\xe2\x80\x99s Due Process Clause\nextend to certain personal choices central to individual dignity and autonomy, including intimate\nchoices defining personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438,\n453; Griswold v. Connecticut, 381 U. S. 479, 484\xe2\x80\x93486. Courts must exercise reasoned judgment\nin identifying interests of the person so fundamental that the State must accord them its respect.\nHistory and tradition guide and discipline the inquiry but do not set its outer boundaries. When\nnew insight reveals discord between the Constitution\xe2\x80\x99s central protections and a received legal\nstricture, a claim to liberty must be addressed.\nApplying these tenets, the Court has long held the right to marry is protected by the Constitution.\nFor example, Loving v. Virginia, 388 U. S. 1, 12, invalidated bans on interracial unions,\nand Turner v. Safley, 482 U. S. 78, 95, held that prisoners could not be denied the right to marry.\nTo be sure, these cases presumed a relationship involving opposite-sex partners, as\ndid Baker v. Nelson, 409 U. S. 810, a one-line summary decision issued in 1972, holding that the\nexclusion of same-sex couples from marriage did not present a substantial federal question. But\nother, more instructive precedents have expressed broader principles. See, e.g., Lawrence, supra,\nat 574. In assessing whether the force and rationale of its cases apply to same-sex couples, the\nCourt must respect the basic reasons why the right to marry has been long protected.\nSee, e.g., Eisenstadt, supra, at 453\xe2\x80\x93454. This analysis compels the conclusion that same-sex\ncouples may exercise the right to marry.\n(2) Four principles and traditions demonstrate that the reasons marriage is fundamental under the\nConstitution apply with equal force to same-sex couples. The first premise of this Court\xe2\x80\x99s relevant\nprecedents is that the right to personal choice regarding marriage is inherent in the concept of\nindividual autonomy. This abiding connection between marriage and liberty is\nwhy Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at\n12. Decisions about marriage are among the most intimate that an individual can make.\nSee Lawrence, supra, at 574. This is true for all persons, whatever their sexual orientation.\nA second principle in this Court\xe2\x80\x99s jurisprudence is that the right to marry is fundamental because\nit supports a two-person union unlike any other in its importance to the committed individuals.\nThe intimate association protected by this right was central to Griswold v. Connecticut, which held\nthe Constitution protects the right of married couples to use contraception, 381 U. S., at 485, and\nwas acknowledged in Turner, supra, at 95. Same-sex couples have the same right as opposite-sex\ncouples to enjoy intimate association, a right extending beyond mere freedom from laws making\nsame-sex intimacy a criminal offense. See Lawrence, supra, at 567.\n243\n\n\x0cA third basis for protecting the right to marry is that it safeguards children and families and thus\ndraws meaning from related rights of childrearing, procreation, and education.\nSee, e.g., Pierce v. Society of Sisters, 268 U. S. 510. Without the recognition, stability, and\npredictability marriage offers, children suffer the stigma of knowing their families are somehow\nlesser. They also suffer the significant material costs of being raised by unmarried parents,\nrelegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and\nhumiliate the children of same-sex couples. See Windsor, supra, at ___. This does not mean that\nthe right to marry is less meaningful for those who do not or cannot have children. Precedent\nprotects the right of a married couple not to procreate, so the right to marry cannot be conditioned\non the capacity or commitment to procreate.\nFinally, this Court\xe2\x80\x99s cases and the Nation\xe2\x80\x99s traditions make clear that marriage is a keystone of the\nNation\xe2\x80\x99s social order. See Maynard v. Hill, 125 U. S. 190, 211. States have contributed to the\nfundamental character of marriage by placing it at the center of many facets of the legal and social\norder. There is no difference between same- and opposite-sex couples with respect to this principle,\nyet same-sex couples are denied the constellation of benefits that the States have linked to marriage\nand are consigned to an instability many opposite-sex couples would find intolerable. It is\ndemeaning to lock same-sex couples out of a central institution of the Nation\xe2\x80\x99s society, for they\ntoo may aspire to the transcendent purposes of marriage.\nThe limitation of marriage to opposite-sex couples may long have seemed natural and just, but its\ninconsistency with the central meaning of the fundamental right to marry is now manifest.\n(3) The right of same-sex couples to marry is also derived from the Fourteenth Amendment\xe2\x80\x99s\nguarantee of equal protection. The Due Process Clause and the Equal Protection Clause are\nconnected in a profound way. Rights implicit in liberty and rights secured by equal protection may\nrest on different precepts and are not always co-extensive, yet each may be instructive as to the\nmeaning and reach of the other. This dynamic is reflected in Loving, where the Court invoked both\nthe Equal Protection Clause and the Due Process Clause; and in Zablocki v. Redhail, 434 U. S.\n374, where the Court invalidated a law barring fathers delinquent on child-support payments from\nmarrying. Indeed, recognizing that new insights and societal understandings can reveal unjustified\ninequality within fundamental institutions that once passed unnoticed and unchallenged, this Court\nhas invoked equal protection principles to invalidate laws imposing sex-based inequality on\nmarriage, see, e.g., Kirchberg v. Feenstra, 450 U. S. 455, 460\xe2\x80\x93461, and confirmed the relation\nbetween liberty and equality, see, e.g., M. L. B. v. S. L. J., 519 U. S. 102, 120\xe2\x80\x93121.\nThe Court has acknowledged the interlocking nature of these constitutional safeguards in the\ncontext of the legal treatment of gays and lesbians. See Lawrence, 539 U. S., at 575. This dynamic\nalso applies to same-sex marriage. The challenged laws burden the liberty of same-sex couples,\nand they abridge central precepts of equality. The marriage laws at issue are in essence unequal:\nSame-sex couples are denied benefits afforded opposite-sex couples and are barred from\nexercising a fundamental right. Especially against a long history of disapproval of their\nrelationships, this denial works a grave and continuing harm, serving to disrespect and subordinate\ngays and lesbians.\n\n244\n\n\x0c(4) The right to marry is a fundamental right inherent in the liberty of the person, and under the\nDue Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex\nmay not be deprived of that right and that liberty. Same-sex couples may exercise the fundamental\nright to marry. Baker v. Nelson is overruled. The State laws challenged by the petitioners in these\ncases are held invalid to the extent they exclude same-sex couples from civil marriage on the same\nterms and conditions as opposite-sex couples.\n(5) There may be an initial inclination to await further legislation, litigation, and debate, but\nreferenda, legislative debates, and grassroots campaigns; studies and other writings; and extensive\nlitigation in state and federal courts have led to an enhanced understanding of the issue. While the\nConstitution contemplates that democracy is the appropriate process for change, individuals who\nare harmed need not await legislative action before asserting a fundamental right. Bowers, in effect,\nupheld state action that denied gays and lesbians a fundamental right. Though it was eventually\nrepudiated, men and women suffered pain and humiliation in the interim, and the effects of these\ninjuries no doubt lingered long after Bowers was overruled. A ruling against same-sex couples\nwould have the same effect and would be unjustified under the Fourteenth Amendment.\nThe petitioners\xe2\x80\x99 stories show the urgency of the issue they present to the Court, which has a duty\nto address these claims and answer these questions. Respondents\xe2\x80\x99 argument that allowing samesex couples to wed will harm marriage as an institution rests on a counterintuitive view of oppositesex couples\xe2\x80\x99 decisions about marriage and parenthood. Finally, the First Amendment ensures that\nreligions, those who adhere to religious doctrines, and others have protection as they seek to teach\nthe principles that are so fulfilling and so central to their lives and faiths.\n(c) The Fourteenth Amendment requires States to recognize same-sex marriages validly performed\nout of State. Since same-sex couples may now exercise the fundamental right to marry in all States,\nthere is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in\nanother State on the ground of its same-sex character. Pp. 27\xe2\x80\x9328.\n772 F. 3d 388, reversed.\nKennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor,\nand Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia and Thomas, JJ.,\njoined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined. Thomas, J., filed a\ndissenting opinion, in which Scalia, J., joined. Alito, J., filed a dissenting opinion, in\nwhich Scalia and Thomas, JJ., joined.\nNotes\n1 Together with No. 14\xe2\x80\x93562, Tanco et al. v. Haslam, Governor of Tennessee, et al., No. 14\xe2\x80\x93\n571, DeBoer et al. v. Snyder, Governor of Michigan, et al., and No. 14\xe2\x80\x93574, Bourke et al.\nv. Beshear, Governor of Kentucky, also on certiorari to the same court.\n\n245\n\n\x0cPART II: DIVORCE\nThe grounds for divorce in New York are set out in Domestic Relations Law (DOM) \xc2\xa7 170. The\naddition of a no fault provision in 2010 significantly changed divorce case litigation. Plaintiffs no\nlonger have to prove why they should be granted a divorce which in many divorce cases before\n2010 was no easy task. So, while most divorce lawyers and clients now utilize the no fault\nprovision of DOM \xc2\xa7 170 (7), the other grounds for divorce are still on the books and are still\navailable for plaintiffs and their divorce actions.\nThere are circumstances where a marriage should be annulled. In other words, one of the parties\nis seeking a court order to dissolve the marriage and have a court declare the marriage null and\nvoid, like it never happened. Some marriages are void by law, and some are voidable. What follows\nare the grounds for annulment in New York. This is followed by the actual statute for divorce\ngrounds including a brief summary of each. It is important to know that the only court that can\nhear and issue a judgment of divorce is the New York Supreme Court, not Family Court.\nVoid Marriages and Annulment:\n\xe2\x80\xa2 If your spouse was legally married to someone else when you got married and that person\nis still living, you can seek an annulment. This ground can be asserted at any time during\nthe lifetime of the parties. This marriage is void under the law. DOM \xc2\xa7 6\n\xe2\x80\xa2 If the marriage is incestuous, it is a void marriage. You cannot marry someone that is an\nancestor and a descendant like a father-daughter or mother-son, nor can a brother and sister\nwhether half or whole blood, or an uncle and niece or an aunt and nephew get married. See\nPart I Marriage section above. DOM \xc2\xa7 5\n\xe2\x80\xa2 A marriage which was solemnized by someone other than a person authorized under the\nlaw is void. See Part I Marriage section above.\n\xe2\x80\xa2 If one of the parties to the marriage was underage at the time of the marriage you can seek\nan annulment. This ground can be asserted until the underage party is legal of the age of\nconsent. This is a voidable ground for marriage. See Part I Marriage section above. DOM\n\xc2\xa7 7, DOM \xc2\xa7 140\n\xe2\x80\xa2 If one of the parties has an incurable mental illness at the time of marriage, that is\nunknown to the other party, the court may grant an annulment. The non-ill spouse must\ncommence the action as soon as they learn of the mental illness, and the mental illness is\npresent when the annulment is commenced. This is a voidable ground. DOM \xc2\xa7 7, DOM \xc2\xa7\n140, DOM \xc2\xa7 141\n\xe2\x80\xa2 If one the parties is physical incapable of sexual relations with the other spouse at the\ntime of the marriage, and this is not known to the other spouse at the time of the\nmarriage, the court may grant an annulment within five years of the marriage. This is a\nvoidable ground. DOM \xc2\xa7 7, DOM \xc2\xa7 140\n\xe2\x80\xa2 If consent for the marriage was obtained by force, duress, or fraud, the marriage is\nvoidable. DOM \xc2\xa7 7, DOM\xc2\xa7 140\n\xe2\x80\xa2 If one or both of the parties is incapable of consent for want of understanding due to\nmental incapacity, then the marriage is voidable. DOM \xc2\xa7 7, DOM \xc2\xa7 140\n\n246\n\n\x0cChildren of an annulled marriage are legitimate. (DOM \xc2\xa7 24) Child custody, visitation, and child\nsupport are determined by statute in the same manner as in a divorce action. The same is true of\nproperty obtained during the marriage. It is divided by the court in the same manner as in a divorce.\n(See appropriates sub-sections below.)\nDomestic Relations Law \xc2\xa7 170\n\xe2\x80\x9cAn action for divorce may be maintained by a husband or wife to procure a judgment divorcing\nthe parties and dissolving the marriage on any of the following grounds:\n(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the\ndefendant so endangers the physical or mental well-being of the plaintiff as renders it unsafe or\nimproper for the plaintiff to cohabit with the defendant.\n(2) The abandonment of the plaintiff by the defendant for a period of one or more years.\n(3) The confinement of the defendant in prison for a period of three or more consecutive years\nafter the marriage of plaintiff and defendant.\n(4) The commission of an act of adultery, provided that adultery for the purposes of articles ten,\neleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual\nintercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant,\nwith a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual\nconduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in\nsubdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.\n(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a\nperiod of one or more years after the granting of such decree or judgment, and satisfactory proof\nhas been submitted by the plaintiff that he or she has substantially performed all the terms and\nconditions of such decree or judgment.\n(6) The husband and wife have lived separate and apart pursuant to a written agreement of\nseparation, subscribed by the parties thereto and acknowledged or proved in the form required to\nentitle a deed to be recorded, for a period of one or more years after the execution of such\nagreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially\nperformed all the terms and conditions of such agreement. Such agreement shall be filed in the\noffice of the clerk of the county wherein either party resides. In lieu of filing such agreement,\neither party to such agreement may file a memorandum of such agreement, which memorandum\nshall be similarly subscribed and acknowledged or proved as was the agreement of separation and\nshall contain the following information: (a) the names and addresses of each of the parties, (b) the\ndate of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this\nsubscription and acknowledgment or proof of such agreement of separation.\n(7) The relationship between husband and wife has broken down irretrievably for a period of at\nleast six months, provided that one party has so stated under oath. No judgment of divorce shall\nbe granted under this subdivision unless and until the economic issues of equitable distribution of\n247\n\n\x0cmarital property, the payment or waiver of spousal support, the payment of child support, the\npayment of counsel and experts\' fees and expenses as well as the custody and visitation with the\ninfant children of the marriage have been resolved by the parties, or determined by the court and\nincorporated into the judgment of divorce.\xe2\x80\x9d\nDOM \xc2\xa7 170 Summary\nCruel and Inhuman Treatment DOM \xc2\xa7 170(1):\n\xe2\x80\xa2 Physical or mental cruelty by one spouse against the other.\n\xe2\x80\xa2 Must prove it is not safe or proper for the parties to continue the marriage.\n\xe2\x80\xa2 Must have occurred within five years of divorce.\nAbandonment DOM \xc2\xa7 170(2):\n\xe2\x80\xa2 Must be for one year or more without consent.\n\xe2\x80\xa2 Can be \xe2\x80\x9cconstructive abandonment\xe2\x80\x9d if you refuse to have relations without justification.\nImprisonment DOM \xc2\xa7 170(2):\n\xe2\x80\xa2 Must be for three years or more.\n\xe2\x80\xa2 Must be without interruption.\nAdultery DOM \xc2\xa7 170(4):\n\xe2\x80\xa2 Sex outside of marriage within five years of divorce action.\n\xe2\x80\xa2 Must be proven by more than just the testimony of the spouse.\n\xe2\x80\xa2 Plaintiff must prove opportunity, inclination, and intent.\no Defenses\n\xc2\xa7 If a spouse gives their consent to the sex outside of the marriage, it is not\nadultery.\n\xc2\xa7 If a spouse has sexual relations with their adulterous spouse after they know\nabout it, they have forgiven the act and can no longer use the adultery as\ngrounds for divorce.\n\xc2\xa7 The action for divorce based on adultery must be brought within five years\nof discovery, or it is beyond the Statute of Limitations.\n\xc2\xa7 If both spouses committed adultery, neither can use the grounds of adultery\nagainst the other.\nLiving Separate and Apart for More Than One Year Pursuant to a Separation Judgment\nDOM \xc2\xa7 170(5):\n\xe2\x80\xa2 Similar to a separation agreement conversion divorce.\n\xe2\x80\xa2 This cause of action is very rare.\nLiving Separate and Apart for More Than One Year Pursuant to a Separation Agreement\nDOM \xc2\xa7 170(6):\n\xe2\x80\xa2 Must be a valid separation agreement.\n\xe2\x80\xa2 The agreement must have been substantially followed.\n\xe2\x80\xa2 This is also known as a \xe2\x80\x9cconversion\xe2\x80\x9d divorce.\n248\n\n\x0c\xe2\x80\xa2\n\nDivorce is not automatic, must be filed for.\n\nIrretrievable Breakdown of the Marriage for at Least Six Months DOM \xc2\xa7 170(7):\n\xe2\x80\xa2 New York\xe2\x80\x99s version of a no-fault divorce.\n\xe2\x80\xa2 Either party can make the claim.\n\xe2\x80\xa2 Economic issues must also be resolved.\n\xe2\x80\xa2 Only available for marriages that are of six or more months in duration.\n\xe2\x80\xa2 If claimed by a spouse, there is no defense.\nTYPICAL DIVORCE ISSUES\nOnce the grounds for a divorce have been established, the parties must also resolve the economic\nand parental responsibilities if children are involved. The following are very typical divorce issues\nthat must be resolved by the parties or by a court.\n\xe2\x80\xa2 Child Custody\n\xe2\x80\xa2 Child Visitation\n\xe2\x80\xa2 Spousal Support/Maintenance\n\xe2\x80\xa2 Child Support\n\xe2\x80\xa2 Dividing Marital Property pursuant to Equitable Distribution\nChild Custody:\nChild custody is often the most contested and contentious part of divorce litigation. It is also an\nissue for non-married parents who are seeking orders of custody and support in Family Court.\nRegardless of the marital status of the parties, the standard for custody is the same, what is in the\nbest interest of the child.\nThe following are factors a judge may consider in deterring what is in the best interest of a child.\n\xe2\x97\x8f Which parent has been the child\xe2\x80\x99s primary caretaker.\n\xe2\x97\x8f The quality of each parent\xe2\x80\x99s home environment.\n\xe2\x97\x8f How \xe2\x80\x9cfit\xe2\x80\x9d the judge thinks each parent is based on the follow:\n\xe2\x80\xa2 Parent has a stable home and lifestyle.\n\xe2\x80\xa2 Parent has demonstrated good judgment.\n\xe2\x80\xa2 Parent is employed.\n\xe2\x80\xa2 Parent has demonstrated good mental and physical health.\n\xe2\x97\x8f Which parent the child is living with now, and for how long.\n\xe2\x97\x8f Each parent\xe2\x80\x99s ability to provide emotional and intellectual support for the child.\n\xe2\x97\x8f Which parent allows the other parent to be involved in the child\xe2\x80\x99s life and does not try to cut out\nthe other parent.\n\xe2\x97\x8f If the child is old enough and mature enough, which parent the child wants to live with.\n249\n\n\x0c\xe2\x97\x8f Whether the child would be separated from any siblings.\n\xe2\x97\x8f Whether either parent has been abusive.\nTypes of Custody:\nThere are several different types of custody arrangements that parties can agree to. When custody\nis contentious and being litigated, it would be unusual for a court to award anything but sole\ncustody to one of the parents. The rationale is that if the parties cannot come to an agreement\nregarding the custody of their child or children, ordering anything but sole custody will just lead\nto more problems between the parents.\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nSole Custody: The legal right to make all major decisions affecting a child under the age\nof 18. Usually includes the physical custody of the child and the child\xe2\x80\x99s primary residence\nwith the sole custody parent.\nJoint Custody: Equally shared decision making even if child spends more physical custody\ntime with the other parent.\nJoint Physical Custody: Equally shared decision making but the child resides about 50%\nof the time with each parent.\n\nIt is a legal presumption that natural parents should have custody of their children. A non-parent\nseeking custody would need to prove extraordinary circumstances to rebut the presumption like\nunfitness, surrender, abandonment, persistent neglect, or other extraordinary circumstances and\nthen prove it is in the best interest of the child for that non-parent to have custody.\nChild Visitation:\nParents can agree to whatever visitation arrangements they want. If a court must decide, visitation\nwill be based on the best interest of the child. Common visitation is alternating weekends, allowing\none day during the week for dinner during the school year, alternating holidays and birthdays, and\nallowing for extended time during the school summer vacation period. If determined to be\nnecessary, supervised visitation may be ordered.\nGenerally, parents get to decide whether grandparents will be allowed visitation with their\nchildren. In Troxel v Granville, 530 US 57 (2000) a 6-3 opinion written by Justice O\xe2\x80\x99Connor, the\nU.S. Supreme Court held that a Washington State ruling allowing grandparents to have weekend\nvisits with their grandchildren, to which the parents objected, was unconstitutional. The Court\ninvoked the \xe2\x80\x9cbest interests of the child\xe2\x80\x9d principle and decided that \xe2\x80\x9cspecial weight\xe2\x80\x9d should be\ngiven parents in determining what is in their child\xe2\x80\x99s \xe2\x80\x9cbest interests\xe2\x80\x9d in regard to allowing the\ngrandparent\xe2\x80\x99s visitation rights as a matter of law.\nNew York law follows the Troxel ruling. However, there are exceptions under NY law. If a parent\ndies and leaves children behind, and that parent parents (the grandparents) had normal and regular\nvisitation with their grandchildren while their child (the parent) was alive, NY courts will grant\ngrandparent visitation under those circumstances.\n\n250\n\n\x0cLegal Representation of a Child:\nAn Attorney for the Child must be appointed for all contested custody cases. This attorney will be\nappointed by the court. The attorney must meet with the child and represent to the court, the child\xe2\x80\x99s\npreference for custody. The attorney can only deviate from this if the attorney determines the child\nis not capable of understanding the ramifications of their preference to live with one parent over\nthe other and it is not in their best interest.\nLincoln Hearing:\nA Lincoln Hearing is an in camera interview by judge of the child to help the judge determine\nwhat is in the child\xe2\x80\x99s best interest in terms of custody and visitation. The judge meets with the\nchild in the judge\xe2\x80\x99s chambers without the parents or parents\xe2\x80\x99 lawyers present. The only other\npeople present are the Attorney for the Child and the court reporter who is recording the interview.\nThe older and more mature the child is, the more a judge should take into consideration the child\xe2\x80\x99s\nwishes.\nModification of Custody:\nCustody can be modified at any time when there is a change in circumstances. The change must\nusually be substantial regarding the emotional, financial, or physical condition of one or both\nparents, justifying a modification of a child custody or child support order.\nRelocation:\nCircumstances sometimes arise where the parent with custody wants to relocate out of the area.\nThis relocation will affect the other parent\xe2\x80\x99s visitation rights. The standard regarding relocation\ncases is the best interest of the child. In a relocation case, the court will consider the impact of the\nmove on the child, the relationship the child has with the non-moving parent, the reason for the\nmove, and the benefits versus the harm that the child may experience from the move.\nSpousal Support/Maintenance:\nSpousal support used to be called alimony, and in some parts of the United States, it still is. There\nare two types of maintenance, temporary and durational. Temporary maintenance is ordered by the\ncourt from the time a court action is filed and a party requests temporary maintenance, until the\ndivorce decree is issued. Durational maintenance is ordered after the divorce decree is issued and\nis for a specific amount of time.\nThe amount of temporary maintenance ordered is determined by Domestic Relations Law (DOM)\n\xc2\xa7 236(B). It is a calculation based on the income of the parties, who has child custody, and the\nlegal child and maintenance support obligations of the parties. Generally, the party with the greater\nincome will pay temporary and durational maintenance. The fault of the parties is not a factor in\ndetermining support. The maintenance calculation is a rather complicated formula. So much so\nthat to assist parties and lawyers in divorce actions, the New York State Unified Court system\nprovides a variety of tools online, including a calculator to help parties and lawyers determine the\nactual maintenance calculation. Use the following link for more detail on how to calculate spousal\nmaintenance.\nhttps://www.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml\n\n251\n\n\x0cDurational maintenance is determined in the same manner as temporary maintenance. The amount\nof time that durational maintenance is ordered to be paid is determined by the number of years the\nparties were married. The statute only provides guidelines to judges on how long they should order\ndurational maintenance to be paid. The longer the term of the marriage was, the longer the term of\ndurational maintenance order. Again, fault is not considered in determining spousal support.\nMaintenance is generally meant to be a short-term obligation. It always terminates upon the\nobligor\xe2\x80\x99s death. It usually terminates upon the recipient\'s remarriage unless a separation agreement\nstates otherwise. Recipient\xe2\x80\x99s cohabitation with someone else may terminate the obligation.\nChild Support:\nParents are responsible for the support of their children up to the age of 21. In determining child\nsupport, whether in a divorce action or in family court with parents who are not married, the\namount of child support to be paid is determined by the Child Support Standards Act of 1989.\nChild support is paid to the parent with custody of the child by the non-custodial parent. A court\nwill determine who has custody of a child, even in situations of joint custody based on who the\nchild resides with more, even if that means counting the number of nights a child sleeps in the\nhome of one parent over the other.\nThe basic child support obligation is determined by a percentage the non-custodial parent\xe2\x80\x99s income\nand the number of children the non-custodial parent is responsible for with that particular custodial\nparent. Note that in determining the percentage to be paid based on the number of children one is\npaying child support for, it is not based on the total number of children one is responsible for with\nmultiple custodial parents.\nThe basic child support percentages are as follows:\n\xe2\x80\xa2 1 child = 17%\n\xe2\x80\xa2 2 children = 25%\n\xe2\x80\xa2 3 children = 29%\n\xe2\x80\xa2 4 children = 31%\n\xe2\x80\xa2 5 or more children = 35%\nIncome of a parent includes:\n\xe2\x80\xa2 Workers\xe2\x80\x99 compensation\n\xe2\x80\xa2 Disability benefits\n\xe2\x80\xa2 Unemployment benefits\n\xe2\x80\xa2 Social security benefits\n\xe2\x80\xa2 Veterans\xe2\x80\x99 benefits\n\xe2\x80\xa2 Pensions and retirement benefits\n\xe2\x80\xa2 Fellowship and stipends\n\xe2\x80\xa2 Annuity payments\n\xe2\x80\xa2 Maintenance received from a former spouse\nIn determining income, certain deductions are also allowed. They include:\n\xe2\x80\xa2 Maintenance actually paid to nonparty spouse\n252\n\n\x0c\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nMaintenance paid to the current spouse\nChild support actually paid to a nonparty\nCertain business or employment expenses\nFICA\n\nWhat is FICA?\nFICA is the acronym for the Federal Insurance Contributions Act. This is the law passed in 1935\nthat created Social Security. FICA is a contribution, (not technically a tax) that all employees and\nemployers pay for Social Security and Medicare benefits. It is withheld from an employee\xe2\x80\x99s\npaycheck and paid to the federal government. Employers also match these payments. If a person\nis self-employed, the pay the employee and employer amount. The percentage of an employee\xe2\x80\x99s\nincome that is used to determine FICA is 6.2% for Social Security plus 1.45% for Medicare. There\nis a cap on income at which point the 6.2% for Social Security is no longer deducted from an\nemployee\xe2\x80\x99s paycheck. That amount in 2018 is $128,700 and can change each year pursuant the\ntax code.\nSince child support and maintenance paid to other parties is deductible, the allowable deductions\ncan affect that amount of child support a parent pays to various children they are responsible for\nwith different custodial parents. For example, if Parent A is paying child support to Parent B first\nfor one child and then also to Parent C for one child, the amount of support being paid to both\nParent B and C will be different. The 17% percentage of Parent A\xe2\x80\x99s will be paid to both but since\nParent B\xe2\x80\x99s obligation will be deducted from Parent A\xe2\x80\x99s income, the amount paid to Parent C will\nbe less. Here is an illustration of this possibility\nParent A\xe2\x80\x99s income is $100,000.00 after the FICA deduction. Parent A will pay 17% of the\n$100,000.00 or $17,000.00 annually to Parent B for their one child. Parent A will pay 17% of\n$83,000.00 or $14,110.00 annually to Parent C for their one child.\nDividing Marital Property Pursuant to Equitable Distribution:\nIn 1980, NY adopted the equitable distribution system for dividing marital property. It is not the\nsame as community property. Marital property is not necessarily divided up equally. It is not equal\ndistribution. Property is divided \xe2\x80\x9cfairly.\xe2\x80\x9d\nThe underlying principle of equitable distribution is that marriage is an \xe2\x80\x9ceconomic partnership.\xe2\x80\x9d\nThis partnership includes both wage and intangible contributions towards this economic\npartnership. Ordinary marital fault not considered in equitable distribution. Fault must be\n\xe2\x80\x9cegregious fault\xe2\x80\x9d so much so that it \xe2\x80\x9cshocks the conscience of the court.\xe2\x80\x9d\nThe parties are required to provide each other with full financial disclosure of their assets,\nliabilities, and income. This financial disclosure is certificated by their counsel.\nThe following factors are considered by the court in making an equitable distribution award:\n(1) The income and property of each party at the time of marriage, and at the time of the\ncommencement of the action;\n\n253\n\n\x0c(2) The duration of the marriage and the age and health of both parties;\n(3) The need of a custodial parent to occupy or own the marital residence and to use or own its\nhousehold effects;\n(4) The loss of inheritance and pension rights upon dissolution of the marriage as of the date of\ndissolution;\n(5) The loss of health insurance benefits upon dissolution of the marriage;\n(6) Any award of maintenance under subdivision six of this part;\n(7) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of\nsuch marital property by the party not having title, including joint efforts or expenditures and\ncontributions and services as a spouse, parent, wage earner, and homemaker, and to the career or\ncareer potential of the other party;\n(8) The liquid or non-liquid character of all marital property;\n(9) The probable future financial circumstances of each party;\n(10) The impossibility or difficulty of evaluating any component asset or any interest in a business,\ncorporation, or profession, and the economic desirability of retaining such asset or interest intact\nand free from any claim or interference by the other party;\n(11) The tax consequences to each party;\n(12) The wasteful dissipation of assets by either spouse;\n(13) Any transfer or encumbrance made in contemplation of a matrimonial action without fair\nconsideration;\n(14) Any other factor which the court shall expressly find to be just and proper.\nEquitable distribution is for marital property only. This means property that is accumulated during\nthe marriage up and until the filing for the divorce. Who has title to marital property is of no\nconsequence. For example, if a couple has separate bank accounts that they have their paychecks\ndeposited in, those accounts are still marital property. The income is being accumulated during the\ncourse of marriage. However, not all property accumulated during the marriage is martial property\nand is considered separate property. Property accumulated before the marriage is separate\nproperty, but can become marital property. The following is a list of what is considered separate\nproperty under DOM \xc2\xa7 236(1) (d).\n(a) Property acquired before the marriage\n\n254\n\n\x0c(b) Property acquired by inheritance\n(c) Gifts to one spouse from anyone other than the other spouse\n(d) Compensation for punitive damages and pain and suffering from a personal injury\n(e) Separate property acquired in exchange for separate property\n(f) Appreciation of separate property remains separate if passive or the non-titled spouse did\nnot contribute towards the appreciation\n(g) Property designated as separate by a validly executed marital agreement\nSeparate property that is comingled with martial property can become marital property. For\nexample, if a spouse inherits money from her parents, but then deposits the money in a joint bank\naccount with her husband and they use the money to pay marital bills, that inherited money could\nbe considered by a court to be comingled. If comingled, the once separate property is now martial\nproperty subject to equitable distribution.\nPrenuptial Agreements:\nSome couples sign a contract prior to getting married contemplating for the possibility of a divorce.\nThese contracts are called prenuptial agreements. Prenuptial agreements settle issues of property\ndivision and support in the event of divorce. Prenuptial agreements are valid in NYS. They must\nbe in writing and signed before a notary. Provisions that relate to children both born and unborn\nare not necessarily enforceable. Again, this is because the standard as to what is in the best interest\nof a child overrides any such agreement. A prenuptial agreement doesn\xe2\x80\x99t take effect until a couple\nactually marries. There is no obligation to disclose finances to each other before signing a\nprenuptial agreement. However, if a potential spouse chooses to disclose their assets and\nmisrepresents their financial condition, the prenuptial agreement may be found by a court to be\ninvalid. It is a misconception that only wealthy people sign prenuptial agreements. Couples who\nwould not consider themselves wealthy find good reasons for signing prenuptial agreements.\n\nSEPARATION AGREEMENTS\nA separation agreement is a legal contract between the parties that resolves all the matrimonial\nissues like support, custody, visitation, and equitable distribution. Many, if not most, divorce\nactions will eventually have a separation agreement as part of the final disposition of the divorce.\nWhy? Because eventually, most parties to a divorce action decide that they would rather\ncompromise and work out all the custody, support, property, and financial issues of a divorce than\nhave a judge do so for them. It saves them attorney fees, is faster, and provides them with the\nopportunity to negotiate a result that is at least acceptable. You never know what a judge will\ndecide.\nMany divorce litigants will negotiate and sign a separation agreement with one of the parties then\nfiling for a divorce pursuant to DOM \xc2\xa7 170(7) which is the no fault divorce provision called\nIrretrievable Breakdown of the Marriage for at Least Six Months. DOM \xc2\xa7 170(7) requires that the\n\n255\n\n\x0c\xe2\x80\x9ceconomic issues of equitable distribution of marital property\xe2\x80\x9d be resolved as part of the divorce\naction which a separation agreement fulfills.\nA separation agreement can be used as grounds for a divorce. (DOM \xc2\xa7 170(6)) This is often called\na conversion divorce. When the parties live separate and apart pursuant to a valid written separation\nagreement for at least one year, either party can file for divorce on that basis alone. However, a\ndivorce does not happen automatically. One of the parties actually has to file for a divorce. Some\npeople never get a divorce after signing an agreement. They are still married but legally separated.\nSeparation agreements must be in writing. They must also be signed by the parties before a notary\npublic and properly notarized. Separation agreements only need to be filed in the county clerk\xe2\x80\x99s\noffice if being used for a conversion divorce. They can be filed at any time before or during the\ndivorce proceedings.\nSeparation agreements can be found to be overreaching and therefore invalid. Fraud or duress is\none way of proving overreaching. Having one attorney represent both parties is disfavored by the\ncourts, and could be used as evidence of overreaching. If a separation agreement is\noverwhelmingly unfair in favor of one party over the over, it may be evidence of overreaching,\nbut that fact along may not be enough. An agreement that is overreaching can be ratified by the\nparties by their actions. If a party lives by an overreaching agreement for a substantial amount of\ntime, it can be viewed by the court as ratification of the agreement and negate the overreaching.\nSeparation agreements are just what they say they are; an agreement to live separate and apart. But\nwhat happens if the parties decide to reconcile after signing one? Usually there is a provision in\nthe agreement that dictates what happens if the parties reconcile. Reconciliation indicates an\nabandonment of the agreement which can occur by the actions of the parties. For example, it can\noccur when the parties move back into the marital home together living as married spouses again\nfor an extended period of time. A weekend would not be long enough for this to happen, but six\nmonths probably would.\nJudicial separation agreements are a cause of action where a legal separation is granted by a\nSupreme Court judge. They are very rare. However, divorce stipulations are very common. A\ndivorce stipulation is a voluntary agreement stated in open court during divorce litigation. It is an\noral version of a separation agreement that is recorded by the stenographer.\n\nPART III: FAMILY LAW\nADOPTION\nAdoption is the legal process whereby a parent or parents take a non-birth child as their own. Both\nFamily Court and Surrogate Court have jurisdiction over adoptions. All adoptions in NYS must be\njudicially sanctioned by a judge in either Family Court or Surrogate Court. Note that Surrogate\nCourt judges are also called Surrogates and are defined as such in DOM \xc2\xa7 109(3).\nAn adopted child acquires all the same legal rights, obligations, and duties of a biological child.\n256\n\n\x0cAfter an adoption, a new birth certificate is issued that reflects the child\xe2\x80\x99s new surname if it is\nactually being changed, and names the adopting parents as the parents of that child. The child\xe2\x80\x99s\noriginal birth certificate, as well as the entire adoption file, is then sealed, and is to be opened\nonly by a court order upon a showing of good cause.\nTYPES OF ADOPTIONS:\n\xe2\x80\xa2 Agency Adoption: This is when the placement of a child for adoption is made through a NYS\nagency that is licensed and authorized by law to receive and place children for adoption within\nNYS.\n\xe2\x80\xa2 Private Placement Adoption: Any adoption, other than through an agency, is a private\nplacement adoption. In these situations, the biological parents of the child choose who will\nadopt their child.\n\xe2\x80\xa2 Step-parent Adoption: This is when a single parent with a child or children gets married, and\nthe new spouse (step-parent) adopts the child or children. This is still considered a private\nplacement adoption.\n\xe2\x80\xa2 International Adoption: Many couples adopt children from other countries. The rules and\nregulations of the various countries that allow international adopts vary greatly. If a child is\nadopted in another country, the parents can readopt the child in NYS, which provides a court\norder recognizing the foreign adoption in NYS.\nWHO MAY ADOPT?\nIn New York State just about any adult who is 18 years of age or older can adopt. (See DOM \xc2\xa7\n110) This includes:\n\xe2\x80\xa2 an unmarried person,\n\xe2\x80\xa2 a married couple,\n\xe2\x80\xa2 two unmarried intimate partners,\n\xe2\x80\xa2 a married person who is legally separated from his or her spouse, or\n\xe2\x80\xa2 a married person who has been living apart from his or her spouse for at least three years\nbefore the adoption case is filed. (DOM \xc2\xa7 110)\nThe standard for adoption is what is in the best interest of the child, just as it is for child custody.\nAn adult with a felony conviction may not be able to get approval to adopt.\nNYS ADOPTION CONSENTS AND NOTICE REQUIREMENTS\nIn agency adoptions, the agency consents to the adoption of the child in its care and guardianship.\nIn private placement adoptions, the private individuals must give their consent. This consent can\nbe given in front of a judge. This is called a judicial consent. If the consent is given, but not in\nfront of a judge, this is called an extra-judicial consent.\nThe consent to an adoption given in writing in court in front of a judge is immediately irrevocable.\nThe biological parent(s) cannot change their mind and have their child returned. However, if the\nconsent is not given in front of a judge, the parents have 45 days to change their mind and withdraw\ntheir consent. If this happens, this does not mean the child will automatically be returned to the\nbiological parents. If the adoptive parents oppose the withdrawal of the consent, then a hearing\nwill be required. The judge will then determine if the consent was properly withdrawn in time and\nif so, then decide the custody of the child based on what is in the best interest of the child.\n257\n\n\x0cRequired Consents:\nDomestic Relations Law \xc2\xa7 111 states:\n\xe2\x80\x9c1. Subject to the limitations hereinafter set forth consent to adoption shall be required as follows:\n(a) Of the adoptive child, if over fourteen years of age, unless the judge or surrogate in his\ndiscretion dispenses with such consent;\n(b) Of the parents or surviving parent, whether adult or infant, of a child conceived or born in\nwedlock;\n(c) Of the mother, whether adult or infant, of a child born out of wedlock;\n(d) Of the father, whether adult or infant, of a child born out-of-wedlock and placed with the\nadoptive parents more than six months after birth, but only if such father shall have maintained\nsubstantial and continuous or repeated contact with the child\xe2\x80\xa6\xe2\x80\x9d\nUnder certain circumstances, consent is not required of a parent who does not have contact with\ntheir child for six months or more after birth. Domestic Relations Law \xc2\xa7 111 states:\n\xe2\x80\x9c2. The consent shall not be required of a parent or of any other person having custody of the child:\n(a) who evinces an intent to forego his or her parental or custodial rights and obligations as\nmanifested by his or her failure for a period of six months to visit the child and communicate with\nthe child or person having legal custody of the child, although able to do so;\xe2\x80\x9d\nGENERAL INFORMATION ABOUT NEW YORK STATE ADOPTIONS\n\xe2\x80\xa2 Court adoption records in NYS are sealed. No one can see the court records of an adoption\nincluding the public, the adoptive parents, the birth parents, or the adopted child.\n\xe2\x80\xa2\n\nChildren cannot be sold or bought for adoption (or for any other purpose). It is a crime to\ndo so. If suspected, the parties will be subject to criminal investigation and prosecution in\nNew York.\n\n\xe2\x80\xa2\n\nParents who participate in an international adoption may petition for a readoption in New\nYork State. When an adoption is completed in a foreign country, a Petition for Registration\nof Foreign Adoption Order can be filed in either the Family Court or Surrogate\'s Court in\nthe county of residence. By doing so, the adoptive parents can obtain a New York court\norder that recognizes the foreign adoption. This will allow the parents to get a New York\nbirth certificate for their adoptive child from the Department of Health. Sometimes, a\nreadoption case may be necessary to satisfy federal immigration requirements.\n\n\xe2\x80\xa2\n\nSurrogate parent agreements are not legally binding in New York. Surrogate motherhood\nis against public policy in NYS. (DOM \xc2\xa7 122.) A surrogate mother that is paid for carrying\na child for another person may be subject to a civil fine. (DOM \xc2\xa7 123(2)(a)) New York\ncourts will not force a surrogate birth mother to give up her child to another person, even\nif she agreed to do so by written contract.\n\n\xe2\x80\xa2\n\nPursuant to the Interstate Compact on the Placement of Children (ICPC), adopting parents\nmust get approval before a child from another state is brought into New York State for\nadoption. Requests for such are processed through the NYS Office of Children and Family\nServices\' ICPC Unit.\n258\n\n\x0c\xe2\x80\xa2\n\nNew York State has an Adoption Information Registry. This Registry can help an adopted\nperson get medical information or general information about their birth parents or, in some\ncases, siblings. However, no information that can identify either the adoptee or birth\nparents is given without the appropriate legal permission of the parties involved. The\nRegistry is under the jurisdiction of NYS\xe2\x80\x99 Department of Health. For more information\nregarding this Registry, use the following link.\nhttps://www.health.ny.gov/vital_records/adoption.htm?PHPSESSID=55729bfebab7670d\n004fde3ce3fa0a12\n\n\xe2\x80\xa2\n\nA NYS adoption must be initiated, and eventually \xe2\x80\x9cfinalized\xe2\x80\x9d, in a Family or Surrogate\nCourt in the county in which the adoptive parents reside.\n\n\xe2\x80\xa2\n\nThe adoption process is initiated by the filing with the court of a petition to adopt.\n\n\xe2\x80\xa2\n\nAdoptive parents seeking to adopt through private placement are required to obtain\ncertification by the appropriate court, as qualified adoptive parents, prior to taking custody\nof an adoptive child. Part of this process includes criminal background checks and a home\nstudy.\n\n\xe2\x80\xa2\n\nThe final order of adoption will not be signed by the court until at least six months after\nthe initiation of the adoption proceeding, unless the court determines that signing the order\nsooner is in the child\xe2\x80\x99s best interest.\n\nPATERNITY\nPaternity is defined as the state or condition of being a father. Paternity suits are family court\nproceedings where the court will determine who is the legal father of a child. In some\ncircumstances, this may not be the biological father. The typical paternity suit occurs when a\nmother is seeking child support for a child born out of wedlock. Before a court can order a person,\nwho is not married to the mother of a child to pay child support, that person must either admit they\nare the father of said child or if they do not, family court must determine he is the father. The\nfollowing are some common legal terms used in paternity cases.\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nOrder of Filiation: An order establishing the paternity of a child or unborn child born out\nof wedlock issued by a court.\nPutative Father: Person assumed to be the father of a child born out of wedlock, by actions\nor deeds such as parenting, providing physical and/or monetary support.\nPresumed Father: The man to whom the mother was married to at the time of the birth of\nthe child.\nAdjudicated Father: Non-marital father whose paternity has been established by court\norder.\nPutative Father Registry: Out of Wedlock data bank with NYS Dept. of Social Services\nfor:\no Men adjudicated as fathers\n259\n\n\x0c\xe2\x80\xa2\n\xe2\x80\xa2\n\no Men acknowledged to be fathers\no Men claiming to be fathers who have filed\nAcknowledgment of Paternity: This is a written instrument whereby a person admits that\nhe is the biological father of a child born out of wedlock.\nBirth Certificate with the Father Named: Having the father\xe2\x80\x99s name on the Birth\nCertificate does not constitute proof of paternity.\n\nFamily court exclusively uses DNA testing to establish paternity. DNA testing establishes a 95%\nor higher probability of paternity. The standard of proof in paternity suits is clear and convincing\nevidence. This is a higher standard than the preponderance of the evidence but lower than beyond\na reasonable doubt. Respondents have the right to remain silent during paternity suits but unlike\ncriminal cases, that silence can be used by family court against the respondent.\nIf the court determines that a person is the father of a child, the court will issue an order of filiation.\nThe effects of an order of filiation are that the support obligations of the adjudicated father are the\nsame as those born in wedlock. Support will be retroactive to the date of the filing of the paternity\npetition. The court has discretion to order payments for money spent on the child before filing\nincluding expenses of the pregnancy.\nIt is presumed that a child born in wedlock is the child of the husband. This is a rebuttable\npresumption. A husband that suspects he is not the father of a child that his wife gives birth to can\ninstitute a paternity suit to determine whether he is the biological father.\nEquitable Estoppel: There is a common law doctrine that states that the delay in bringing a court\ncase will preclude a person from asserting their rights against another person who has justifiably\nrelied on the conduct and who would suffer damage if the person were now allowed to assert such\nrights. This is known as equitable estoppel. NYS has codified this doctrine to apply to paternity\nsuits. (Family Ct Act \xc2\xa7 418 [a]; \xc2\xa7 532 [a]) The following case illustrates how the doctrine is applied\nto paternity suits.\n\nMatter of Shondel J. v Mark D.\n7 NY3d 320 (2006)\nCourt of Appeals\nOPINION OF THE COURT\n(Dissenting Opinion and Footnotes Not Included)\nRosenblatt, J.\nIn this child support proceeding, we hold that a man who has mistakenly represented himself as a\nchild\'s father may be estopped from denying paternity, and made to pay child support, when the\n260\n\n\x0cchild justifiably relied on the man\'s representation of paternity, to the child\'s detriment. We reach\nthis conclusion based on the best interests of the child as set forth by the Legislature.\nI.\nIn January 1996, Shondel J. gave birth to a daughter in Guyana, where she then resided, and in a\nbirth registration document named Mark D. as the father. Shondel and Mark had dated the\nprevious spring in Guyana and had sexual intercourse.\nAlthough Mark was in New York when the child was born, he provided financial support for the\nchild and returned to Guyana later in the year to see her. In a sworn statement, notarized by the\nGuyana Consul-General in New York in January 1996, Mark declared that he was "convinced"\nthat he was the child\'s father and accepted "all paternal responsibilities including child support."\nIn 1998 he signed a Guyana registry, stating that he was her father and authorizing the change of\nher last name to his. Mark named the child the primary beneficiary on his life insurance policy,\nidentifying her as his daughter. He also sent Shondel money monthly for the child\'s support from\nher birth until June 1999 and then less regularly through the summer of 2000.\nIn August 2000, Shondel commenced a Family Court Act article 5 proceeding alleging that Mark\nis the father and seeking orders of filiation and support. Initially, Mark did not contest paternity.\nOn the contrary, in September 2000, when the child was 4\xc2\xbd years old, Mark commenced a\nFamily Court Act article 6 proceeding, seeking visitation. In his petition, he stated that he was\nthe child\'s father, and that he loved her and wished to "spend quality time with her on a regularly\nscheduled basis."\nIn October 2000, however, when appearing before a Family Court hearing examiner to answer\nShondel\'s petition, Mark requested DNA testing. The hearing examiner ordered genetic marker\ntests, which revealed that Mark is not the child\'s biological father. The hearing examiner then\ndismissed Shondel\'s paternity petition, and Mark abandoned his petition for visitation, having\nsevered his relationship with the child. Shondel objected to the hearing examiner\'s order,\nexpressing doubts about the laboratory tests and stating that she would be able to show that Mark\nhad always recognized the child as his. Realizing that the hearing examiner had exceeded her\nauthority in dismissing Shondel\'s petition, Family Court sustained her objection and appointed a\nlaw guardian for the child.\nIn October 2001, the Law Guardian reported that Mark had acted as the father of the child, who\nin turn considered him her father. Family Court set the matter down for a trial on equitable\nestoppel and ordered another set of tests. A blood genetic marker test confirmed that Mark is not\nthe child\'s biological father.\nAt the estoppel trial, Family Court heard widely diverging testimony from Shondel and Mark.\nAccording to Shondel\'s testimony, Mark spent time with her and the child when they traveled to\nthe United States in 1996 and 1997, seeing them "every day" for about six weeks in the summer\nof 1997 in New York; continued to visit the child and take her out after his relationship with\nShondel soured in 1998; bought the child toys, clothes and other gifts; took the child to meet his\nparents; told his family that she was his daughter; regularly spoke with the child by telephone;\nreferred to himself as "daddy" when talking with the child; and visited the child "almost every\n261\n\n\x0cother day" in August 1999 and "almost every other day" between the time Shondel and the child\nmoved to New York in January 2000 and the commencement of this litigation.\nMark denied all of this, asserting that he had seen the child only four times since her birth; that\nhe had not acknowledged the child as his; that he had not introduced the child to his family or\nfriends as his child; that he had not sent the child birthday or Christmas gifts; and that he had\nnever visited her. Mark testified that he twice asked Shondel to submit to a blood test to\ndetermine whether he was the father of her child. Shondel insisted that he did not.\nFamily Court believed Shondel "entirely" and found Mark\'s testimony incredible. It ruled that\nMark "held himself out as [the] child\'s father and behaved in every way as if he was the father,\nalbeit a father who didn\'t reside for a good part of the child\'s life, in the same country." These\naffirmed findings of Family Court have support in the record and are binding on this Court.\nFamily Court entered an order of filiation and awarded child support retroactive to the date\nShondel commenced the Family Court proceeding. The Appellate Division affirmed, concluding\nthat "Family Court properly determined that it was in the best interests of the subject child to\nequitably estop [Mark] from denying paternity" (6 AD3d 437 [2004]). We agree, based on our\nprecedents, the affirmed findings of fact and the legislative recognition of paternity by estoppel.\nII.\nThe purpose of equitable estoppel is to preclude a person from asserting a right after having led\nanother to form the reasonable belief that the right would not be asserted, and loss or prejudice to\nthe other would result if the right were asserted. The law imposes the doctrine as a matter of\nfairness. Its purpose is to prevent someone from enforcing rights that would work injustice on the\nperson against whom enforcement is sought and who, while justifiably relying on the opposing\nparty\'s actions, has been misled into a detrimental change of position (see generally Nassau Trust\nCo. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982]).\nNew York courts have long applied the doctrine of estoppel in paternity and support\nproceedings. Our reason has been and continues to be the best interests of the child (Jean Maby\nH. v Joseph H., 246 AD2d 282, 285 [2d Dept 1998]; see generally Matter of L. Pamela P. v\nFrank S., 59 NY2d 1, 5 [1983]).\nAlthough it originated in case law, paternity by estoppel is now secured by statute in New York\n(see Family Ct Act \xc2\xa7 418 [a]; \xc2\xa7 532 [a]). For that reason, and contrary to Mark\'s assertions, it is\nnot for us to decide whether the doctrine has a rightful place in New York law. Clearly it does, in\nthe absence of legislative repeal or a determination of unconstitutionality. Mark argues for the\nfirst time in this appeal that sections 418 (a) and 532 (a) are unconstitutional and deprive him of\ndue process. As this claim was not raised in the courts below, we do not entertain it.\nEquitable estoppel is gender neutral. In Matter of Sharon GG. v Duane HH. (63 NY2d 859\n[1984], affg 95 AD2d 466 [3d Dept 1983]), we affirmed an order of the Appellate Division\ndismissing a paternity petition in which a mother sought to compel her husband to submit to a\nblood test as a means of challenging his paternity. We agreed with the Appellate Division that\nthe mother should be estopped. As that Court pointed out, the mother expressed no question\n262\n\n\x0cabout her child\'s paternity until some 2\xc2\xbd years after the child\'s birth. She had held the child out\nas her husband\'s, accepted his support for the child while she and her husband lived together and\nafter they separated, and permitted her husband and child to form strong ties together.\nEstoppel may also preclude a man who claims to be a child\'s biological father from asserting his\npaternity when he acquiesced in the establishment of a strong parent-child bond between the\nchild and another man. The rationale is that the child would be harmed by a determination that\nsomeone else is the biological father. For example, in Purificati v Paricos (154 AD2d 360 [2d\nDept 1989]), a boy\'s biological father who did not seek to establish his paternity until more than\nthree years after the child\'s birth, and who acquiesced as a relationship flourished between the\nboy and his mother\'s former husband, was estopped from claiming paternity. The courts "impose\nequitable estoppel to protect the status interests of a child in an already recognized and operative\nparent-child relationship" (Matter of Baby Boy C., 84 NY2d 91, 102 n [1994]).\nFinally, the Appellate Division has repeatedly concluded that a man who has held himself out to\nbe the father of a child, so that a parent-child relationship developed between the two, may be\nestopped from denying paternity. Where a child justifiably relies on the representations of a man\nthat he is her father with the result that she will be harmed by the man\'s denial of paternity, the\nman may be estopped from asserting that denial.\nIII.\nMark represented that he was the father of the child, and she justifiably relied on this\nrepresentation, changing her position by forming a bond with him, to her ultimate detriment. He\nis therefore estopped from denying paternity.\nMark expressly represented that he was the father of Shondel\'s child in the notarized sworn\nstatement and in the Guyana registry in which he gave the child his name, as well as in the\nvisitation petition filed with Family Court. Further, Mark held himself out as the child\'s father,\nand behaved in every way as if he was the father. Mark and the child had a close relationship, in\nwhich he referred to himself as her "daddy," and which involved regular telephone\nconversations, frequent visits when she and Mark were in the same city and contact with his\nparents. Moreover, Mark named the child as the primary beneficiary on his life insurance policy\nand sent money monthly for the child\'s support until June 1999, and then less regularly through\nthe summer of 2000.\nThe record also establishes that the child justifiably relied on Mark\'s representations, accepting\nand treating him as her father. The Law Guardian\'s October 2001 oral report to Family Court on\nher interview with the child (conducted when she was 5\xc2\xbd years old) concluded that she\n"considers Mark [D.] to be her father. She enjoys spending time with him, she knew his name,\nshe described what he looks like, different things about his appearance, she talked about some of\nthe things they did together, she enjoyed the visits a lot, he brought her presents in the past, he\ntook her out without the mother sometimes, there\'s a picture album with pictures of [Mark] in it\nand she wanted me to express that she misses him and she wants to know when he\'s going to\ncome back to see her."\nIn the best interests of the child, Family Court properly applied estoppel, to impose support\nobligations on Mark, after he left the child with the detrimental effects of a relationship in which\n263\n\n\x0cshe was misled into believing that he was her father. A mother who had perfect foresight and\nknew that her child\'s relationship with a father figure would be severed when the child was 4\xc2\xbd\nmight well choose never to inform him of her child\'s birth.\nIV.\nMark attacks the statutory basis for the application of paternity by estoppel. In 1990, the\nLegislature amended Family Court Act \xc2\xa7 418 (a), which governs the procedures related to\nscientific testing of biological paternity in support proceedings, so as to read, in pertinent part:\n"The court, on its own motion or motion of any party, when paternity is contested, shall order the\nmother, the child and the alleged father to submit to one or more genetic marker or DNA marker\ntests . . . to aid in the determination of whether the alleged father is or is not the father of the\nchild. No such test shall be ordered, however, upon a written finding by the court that it is not in\nthe best interests of the child on the basis of res judicata, equitable estoppel or the presumption of\nlegitimacy of a child born to a married woman." (Family Ct Act \xc2\xa7 418 [a] [emphasis\nsupplied]; see L 1990, ch. 818, \xc2\xa7 12.)\nArguing that the statute is self-contradictory, Mark asserts that the law mandates scientific\ntesting of biological paternity in support proceedings and then in the next sentence makes such\ntests discretionary. We view the statute differently.\nBy providing a limited "best interests of the child" exception to mandatory biological tests of\ndisputed paternity, the statute requires Family Court to justify its refusal to order biological tests\nwhen paternity is in issue. Before the amendment, Family Court was authorized, but not\nrequired, to order biological tests, and the court did not have to justify its refusal to do so. Now,\nin a support proceeding in which paternity is disputed, Family Court must explain why it denies\na motion for biological paternity testing. The court may deny testing based on "res judicata,\nequitable estoppel or the presumption of legitimacy of a child born to a married woman," if\ndenial is in the best interests of the child.\nIt is true that a child in a support proceeding has an interest in finding out the identity of her\nbiological father. But in many instances a child also has an interest\xe2\x80\x94no less powerful\xe2\x80\x94in\nmaintaining her relationship with the man who led her to believe that he is her father. The 1990\namendment to Family Court Act \xc2\xa7 418 (a) appropriately balances these interests in accordance\nwith the primary purpose of the Family Court Act\xe2\x80\x94to protect and promote the best interests of\nchildren.\nThe procedure contemplated by section 418 (a) is that Family Court should consider paternity by\nestoppel before it decides whether to test for biological paternity. Here, the process was inverted\nearly in the proceeding. Instead of referring the matter to a Family Court judge, the hearing\nexaminer ordered genetic marker tests of paternity when the parties appeared in October 2000.\nAs a result, the child\'s biological paternity had been addressed before Family Court conducted its\ntrial on the issue of estoppel. Nevertheless, even though the tests had been conducted, Family\nCourt was authorized to decide the estoppel issue.\nV.\n\n264\n\n\x0cIn allowing a court to declare paternity irrespective of biological fatherhood, the Legislature\nmade a deliberate policy choice that speaks directly to the case before us. The potential damage\nto a child\'s psyche caused by suddenly ending established parental support need only be stated to\nbe appreciated. Cutting off that support, whether emotional or financial, may leave the child in a\nworse position than if that support had never been given. Situations vary, and the question\nwhether extinguishing the relationship and its attendant obligations will disserve the child is one\nfor Family Court based on the facts in each case. Here, Family Court found it to be in the best\ninterests of the child that Mark be declared her father and the Appellate Division properly\naffirmed.\nAsserting that the equities are with Mark, our dissenting colleagues argue that we do not\nacknowledge the fraud or misrepresentation exception to the doctrine of equitable estoppel. This\nargument is misplaced for three reasons. To begin with, the child is the party in whose favor\nestoppel is being applied and there can be no claim here that she was guilty of fraud or\nmisrepresentation. Secondly, to the extent that it matters, we note that there is no evidence of\nfraud or willful misrepresentation even on Shondel\'s part. It is not likely that she would have\ninitiated paternity proceedings, with the predictable prospect of biological testing, if she expected\ntests to rule him out as the father. There is every reason to believe that she thought Mark was the\nbiological father and that the tests would confirm her belief. Finally, the issue does not involve\nthe equities between the two adults; the case turns exclusively on the best interests of the child.\nWe appreciate the dissenters\' concern over applying estoppel to a case in which, as between\nMark and Shondel, it was she who misrepresented Mark to be the father (even though she may\nhave earnestly believed he was). The dissenters\' position, however, appears not to recognize that\nfatherhood by estoppel does not contemplate a contest between two adults to see who is the more\ninnocent. The child is entirely innocent and by statute the party whose interests are paramount.\nTo the child, Mark represented himself as her father. The Legislature did not create an exception\nfor men who take on the role of fatherhood based on the mother\'s misrepresentation. That would\neviscerate the statute and, with it, the child\'s best interests. Under the enactment, the mother\'s\nmotivation and honesty are irrelevant; the only issue for the court is how the interests of the child\nare best served.\nHere, Family Court found, and the Appellate Division affirmed, that Mark represented himself to\nbe the father and that the child\'s best interests would be served by a declaration of fatherhood.\nUnder our decisional law, and contrary to the dissenters\' suggestion, equitable estoppel does not\nrequire that Mark, to be estopped, necessarily knew that his representation was false. A party\nwho, like Mark, does not realize that his representation was factually inaccurate may yet be\nestopped from denying that representation when someone else\xe2\x80\x94here the child\xe2\x80\x94justifiably relied\non it to her detriment (see Romano v Metropolitan Life Ins. Co., 271 NY 288, 293-294\n[1936]; Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443, 448 [1958]).\nThe dissenters cite Simcuski v Saeli (44 NY2d 442 [1978]), which holds that a defendant may be\nestopped to plead the statute of limitations after having wrongfully induced the plaintiff to refrain\nfrom filing a timely suit. Simcuski prevents defendants from profiting from their misconduct. It\ndoes not bear on estoppel as between a man and the child with whom he has formed a fatherdaughter relationship.\n265\n\n\x0cOur dissenting colleagues point out that Mark has renounced fatherhood and now has no\nrelationship with the child. This state of affairs, however, does not preclude the application of\nestoppel. If it did, a man could defeat the statute simply by severing all ties with the child.\nGiven the statute recognizing paternity by estoppel, a man who harbors doubts about his\nbiological paternity of a child has a choice to make. He may either put the doubts aside and\ninitiate a parental relationship with the child, or insist on a scientific test of\npaternity before initiating a parental relationship. A possible result of the first option is paternity\nby estoppel; the other course creates the risk of damage to the relationship with the woman. It is\nnot an easy choice, but at times, the law intersects with the province of personal relationships and\nsome strain is inevitable. This should not be allowed to distract the Family Court from its\nprincipal purpose in paternity and support proceedings\xe2\x80\x94to serve the best interests of the child.\nAccordingly, the order of the Appellate Division should be affirmed, without costs.\nChief Judge Kaye and Judges Ciparick, Graffeo and Read concur with Judge Rosenblatt; Judge\nG.B. Smith dissents in a separate opinion in which Judge R.S. Smith concurs.\nArtificial Insemination: A child born to a married woman by artificial insemination is legitimate\nif:\n\xe2\x80\xa2 Insemination was performed by a person authorized to practice medicine\n\xe2\x80\xa2 There is written consent of woman and husband\n\xe2\x80\xa2 The doctor certifies she/he rendered the service\nHowever, NYS case law is not clear and definitive regarding artificial insemination rights and\nresponsibilities.\n\nORDERS OF PROTECTION\nCourt procedure for NYS family offenses is found in the Family Court Act (FCT) \xc2\xa7 812. Family\nCourt and criminal courts have concurrent jurisdiction. Victims may proceed in either or both\ncourts.\nFamily court\xe2\x80\x99s objective is to stop the violence, protect the victims and offer rehabilitation services\nto the parties. Criminal court\xe2\x80\x99s objective is to stop the violence, protect the victims and punish the\noffender.\nVictims must be related to the perpetrator by consanguinity or affinity, or as a former spouse or\nhave a child with the perpetrator for standing to bring action. The statute also applies to persons in\nan intimate relationship. An intimate relationship is one that is deeper than an ordinary friendship\nand not necessarily sexual.\nTo obtain an Order of Protection from Family Court, the victim will submit a Petition and appear\nbefore a family court judge. The judge then issues a Summons or a Warrant for the offender to\nappear. The judge may also issue a Temporary Order of Protection at that time. After service or\narrest, a fact-finding hearing is held by the judge. This is akin to a trial. The standard of proof for\n266\n\n\x0cthis fact-finding hearing is preponderance of the evidence. After the fact-finding a dispositional\nhearing is held but often rolled into fact-finding hearing. A dispositional hearing is akin the\nsentencing portion of a criminal trial.\nThe duration of a Family Court Order of Protection is a maximum of 2 years unless the court finds\nAggravating Circumstances. Aggravating Circumstances can extend the order to 5 years.\nThe definition of Aggravating Circumstances can be found in FCT \xc2\xa7 827 (vii).\n\xe2\x80\xa6For the purposes of this section aggravating circumstances shall mean physical\ninjury or serious physical injury to the petitioner caused by the respondent, the use\nof a dangerous instrument against the petitioner by the respondent, a history of\nrepeated violations of prior orders of protection by the respondent, prior convictions\nfor crimes against the petitioner by the respondent or the exposure of any family or\nhousehold member to physical injury by the respondent and like incidents,\nbehaviors and occurrences which to the court constitute an immediate and ongoing\ndanger to the petitioner, or any member of the petitioner\'s family or household.\nThere is a statewide Order of Protection Registry. It was created by the Domestic Violence\nIntervention Act of 1994. It is attached to the New York State Police Information Network. It\ncontains orders of protection issued by criminal, matrimonial and Family Court cases. All orders\nof protection must be issued on official uniform forms and filed with this registry.\nUnder New York State Criminal Procedure Law Section 140.10(4)(b), police officers shall arrest\nthe enjoined party for violating a duly served Order of Protection involving a family or household\nmember whenever they have reasonable cause to believe that the enjoined party:\n\xe2\x80\xa2 Violated a \xe2\x80\x9cstay-away\xe2\x80\x9d provision of the Order of Protection, or\n\xe2\x80\xa2 Committed a family offense in violation of such Order of Protection.\n\nPINS (Person In Need of Supervision)\nA person in need of supervision (PINS) is an individual under the age of 18 who:\n\xe2\x80\xa2 Does not attend school\n\xe2\x80\xa2 Behaves in a way that is incorrigible, ungovernable, or habitually disobedient\n\xe2\x80\xa2 Is beyond the control of a parent, guardian or lawful authority\n\xe2\x80\xa2 Is suspected of drug abuse\n\xe2\x80\xa2 And requires supervision or treatment\nParents, guardians, schools and government agencies are usually the petitioners in PINS cases.\nAfter a Petition for PINS is filed with Family Court, there will usually be a meeting between the\npetitioner which is typically the parents or guardian and the child with the probation department.\nThis is called the adjustment process. The purpose is to resolve the case without court intervention.\nIf this is not possible, there will be an initial court appearance where the child, now officially the\nrespondent is accompanied by a parent or guardian, is informed of his or her rights, which includes\nthe right to an attorney. The court can appoint an Attorney for the Child and if necessary a guardian\n267\n\n\x0cad litem to represent the respondent. It is rare in PINS cases that a child is remanded to a detention\nfacility pending a fact-finding hearing.\nAt the fact-finding hearing, the judge will decide whether the child is "incorrigible, ungovernable,\nor habitually disobedient", to such a degree that the child is out of the control of a parent or\nguardian, or is abusing drugs.\nIf the child is found to be a person in need of supervision, the judge may order any of the following:\n\xe2\x80\xa2 Discharge or release of the respondent with a warning\n\xe2\x80\xa2 Adjournment in contemplation of dismissal (ACD)\n\xe2\x80\xa2 Suspension of judgment for up to 1 year\n\xe2\x80\xa2 Placement of the respondent in his or her own home, in the custody of a suitable relative,\nor in a group or a foster home for up to 18 months\n\xe2\x80\xa2 Probation for up to 1 year\n\xe2\x80\xa2 The respondent, if over the age 10, to make restitution through community service or\nother means\n\nJUVENILE JUSTICE\nIn 2017, New York passed the Raise the Age law that changes the law in regards to juveniles who\ncommit crimes significantly because by October 2019, New York will no longer automatically\nprosecute 16- and 17-year-olds as adults.\nThe following is New York State\xe2\x80\x99s official summary of the law as found at the following link:\nhttp://raisetheageny.com/get-the-facts\nKEY COMPONENTS OF THE LEGISLATION\nThe presumptive age of juvenile accountability is raised for 16 year olds effective\n10/1/18 and for 17 year olds effective 10/1/19. Except as otherwise noted, all\ncomponents described below are pursuant to this timeline.\nThe law will change cases for 16-17 year olds in the following ways:\nParental Notification\n\xe2\x80\xa2 Parents must be notified when their children are arrested.\n\xe2\x80\xa2 Questioning of youth must take place in age-appropriate settings, with parental\ninvolvement (including with regards to waiving Miranda rights), and for\ndevelopmentally appropriate lengths of time.\nCourt Processing\nThe vast majority of cases of 16-17-year olds will ultimately be heard in the Family\nCourt, either originating there or being transferred there from the new Youth Part\nof the adult criminal court.\nMisdemeanors:\n\xe2\x80\xa2 All misdemeanor cases (other than vehicle and traffic law misdemeanors) will be\nheard in Family Court pursuant to the Family Court Act. This includes Family\nCourt Act procedures for adjustment and confidential records.\n268\n\n\x0cFelonies:\n\xe2\x80\xa2 All felony cases will start in the Youth Part of the adult criminal court.\n\xe2\x80\xa2 All non-violent felonies will be transferred from the Youth Part to the Family\nCourt unless the District Attorney (DA) files a motion within 30 days showing\n\xe2\x80\x9cextraordinary circumstances\xe2\x80\x9d as to why the case should remain in the Youth Part.\nIf DA files motion, there can be a hearing and the Judge must decide within 5 days\nof the hearing or motions whether to prevent the transfer of the case to Family\nCourt.\n\xe2\x80\xa2 Violent felonies can also be transferred from the Youth Part to the Family Court.\nIf the charges do NOT include the accused displaying a deadly weapon in\nfurtherance of the offense, causing significant physical injury, or engaging in\nunlawful sexual conduct, the case will transfer to Family Court unless the DA files\na motion within 30 days showing \xe2\x80\x9cextraordinary circumstances\xe2\x80\x9d as to why the case\nshould remain in the Youth Part. If the charge does include an element listed above,\nremoval to Family Court is only possible with consent of the DA. Vehicle and\nTraffic Law cases and Class A felonies other than Class A drug offenses cannot be\ntransferred.\n\xe2\x80\xa2 16 and 17-year olds whose cases remain in the Youth Part will be referred to as\n\xe2\x80\x9cAdolescent Offenders.\xe2\x80\x9d Adult sentencing will apply, but the Judge must take the\nyouth\xe2\x80\x99s age into account when sentencing. Adolescent Offenders are eligible for\nYouthful Offender treatment, as is the current law with respect to 16 and 17-year\nolds charged as adults.\n\xe2\x80\xa2 Adolescent offenders may voluntarily participate in services while their case is\npending.\nViolations:\n\xe2\x80\xa2 Violations will be heard in adult criminal/local courts, as is the current law.\n\nFamily Court:\n\xe2\x80\xa2 Youth whose cases are heard in the Family Court will be processed pursuant to\nexisting Juvenile Delinquency (JD) laws, which includes the opportunity for\nadjustment. They will not have a permanent criminal record.\nYouth Part of Adult Court:\n\xe2\x80\xa2 New \xe2\x80\x9cYouth Parts\xe2\x80\x9d will be created. All 13-15-year-old Juvenile Offenders and all\n16-17-year Adolescent Offenders will have their cases in the Youth Part.\n\xe2\x80\xa2 Family Court judges will preside over cases in the Youth Parts.\n\xe2\x80\xa2\n\nFacilities\nNo 16 or 17-year-old will be sentenced to or detained in a facility with adults. To\nthe extent practicable, no youth under 18 will be held at Rikers by 4/1/18 and as of\n10/1/18, a full prohibition against youth under the age of 18 being held at Rikers\nwill be in effect.\n269\n\n\x0c\xe2\x80\xa2\n\nYouth whose cases are heard in Family Court will be detained or placed in OCFSoperated, OCFS-licensed, or ACS facilities (including Close to Home), as Juvenile\nDelinquents currently are.\n\xe2\x80\xa2 Adolescent Offenders who are detained pre-trial will be held in a specialized\nsecure juvenile detention center for older youth, which will be certified and\nregulated by OCFS in conjunction with the state commission of correction. Judges\nhave the discretion to order that Adolescent Offenders who are sentenced to less\nthan a year serve such sentences in a specialized juvenile detention center for older\nyouth.\n\xe2\x80\xa2 Adolescent Offenders who are sentenced to state imprisonment will be placed in\nan Adolescent Offender facility developed by the state with enhanced security\nmanaged by DOCCS with the assistance of OCFS.\nSealing\n\xe2\x80\xa2 Anyone convicted of an eligible offense in an adult court may seek to have his/her\nrecord sealed pursuant to C.P.L. \xc2\xa7 160.59 after ten years from the imposition of the\nsentence or discharge from incarceration, whichever is latest. Violent felonies, sex\noffenses, and Class A felonies are not eligible offenses. In addition, sealing is only\navailable for people who have no more than 2 convictions, one of which may be for\na felony.\n\xe2\x80\xa2 The court will create a standardized form for a person to use to apply for sealing.\nThere will be no fee for applying.\nRaise the Age Implementation Task Force\n\xe2\x80\xa2 The Governor will appoint members of a Task Force to coordinate the\nimplementation of these changes.\n\xe2\x80\xa2 The Task Force will issue a report on planning and implementation one year after\nthe effective date (April 2018) and after an initial year of implementation (by\nAugust 2019).\nEffective Dates\n\xe2\x80\xa2 Sealing Provisions: People may begin to apply for sealing 180 days after\nenactment (10/6/17).\n\xe2\x80\xa2 Raise the age for 16-year olds: 10/1/18.\n\xe2\x80\xa2 Raise the age for 17-year olds: 10/1/19.\n\xe2\x80\xa2 Sections related to state reimbursement to the counties for probation are effective\n4/1/18.\n\xe2\x80\xa2 Sections related to reimbursement for detention and alternative to detention are\neffective 10/1/18.\n\xe2\x80\xa2 Elimination of state support for detained PINS will start 1/1/2020.\nYouthful Offenders\n\xe2\x80\xa2 The Youthful Offender (YO) laws remain the same.\n\n270\n\n\x0cJuvenile Justice Categories:\nIn NYS, children that commit crimes are put into different categories depending on their age and\nthe severity of the alleged criminal act. Children under the age of 7 cannot be charged with a crime.\nThe following are the three categories:\n(a) Juvenile Delinquents: Is a child between ages 7 and 15 who has committed a criminal\noffense. All juvenile delinquency cases are heard in Family Court\n(b) Juvenile Offenders: A child, who is 13, 14 or 15 years old and has committed a very\nserious felony, may be tried as an adult in a criminal court. If found guilty, the child is\ncalled a juvenile offender, and is subject to more serious penalties than a juvenile\ndelinquent.\n(c) Youthful Offenders: A 16, 17, or 18-year-old who commits a crime is treated as an\nadult, but can be considered for youthful offender status at the sentencing. Being a\nyouthful offender gives a child a chance to have no criminal record even after a felony\nconviction.\nGenerally, to be treated as a youthful offender, the child must:\n\xe2\x80\xa2 Be least 16 and under 19 at the time the crime is committed.\n\xe2\x80\xa2 Have no prior felony convictions\n\xe2\x80\xa2 Have never been treated as a youthful offender before\nChildren accused of felonies or other serious violent offenses may not be given youthful offender\nstatus. It is up to the judge. A youthful offender record is not a criminal record and is automatically\nsealed. A youthful offender does not have to report their conviction on any applications for college\nor work. It also does not disqualify the youthful offender from holding public office, or public\njobs. The maximum sentence of incarceration for a youthful offender can be no more than four\nyears.\nThe U.S. Supreme Court case In Re Gault 387 U.S. 1 (1967) held that children who are accused\nof committing crimes in family court proceedings are entitled to the same basic constitutional\nprotections afforded adult criminals, namely that they be notified of the charges against them, that\nthey have the right of counsel, that they are entitled to remain silent, and that they can confront\nand cross-examine witnesses against them. The only right they are not entitled to is a jury trial.\n\nReferences:\nDepartment of Health. (2017, September). Retrieved July 27, 2018, from\nhttps://www.health.ny.gov/publications/4210/\nFindLaw\'s United States Supreme Court case and opinions. (n.d.). Retrieved July 27, 2018, from\nhttps://caselaw.findlaw.com/us-supreme-court/14-556.html\nHandling a Family Law Case in New York, By Gary Muldoon, 2018 Dempsey Publishing\n271\n\n\x0cMatter of Shondel J. v Mark D. (2006 NY Slip Op 05238). (n.d.). Retrieved July 27, 2018, from\nhttp://courts.state.ny.us/Reporter/3dseries/2006/2006_05238.htm\nNew York Consolidated Laws, Domestic Relations Law - DOM \xc2\xa7 170. (n.d.). Retrieved July 27,\n2018, from https://codes.findlaw.com/ny/domestic-relations-law/dom-sect-170.html\nNew York State. (n.d.). About Adoption. Retrieved July 27, 2018, from\nhttp://www.nycourts.gov/Courthelp/family/adoptionBasics.shtml\nNew York State. (2016, January 19). Divorce Information & Frequently Asked Questions.\nRetrieved July 27, 2018, from https://www.nycourts.gov/divorce/info_faqs.shtml\nNew York State. (2016, July 06). Obtaining An Order of Protection. Retrieved July 27, 2018,\nfrom https://www.nycourts.gov/faq/orderofprotection.shtml\nNew York State. (2017, April 03). Custody. Retrieved July 27, 2018, from\nhttps://www.nycourts.gov/courthelp/family/custody.shtml\nNew York State. (2017, April 03). Visitation. Retrieved July 27, 2018, from\nhttps://www.nycourts.gov/courthelp/family/visitation.shtml\nNew York State. (2018, June 07). What\'s New in Matrimonial Legislation, Court Rules & Forms.\nRetrieved July 27, 2018, from https://www.nycourts.gov/divorce/legislationandcourtrules.shtml\nNew York State. (2018, January 22). Glossary of Legal Terms. Retrieved July 27, 2018, from\nhttps://www.nycourts.gov/divorce/glossary.shtml\nPogue, D. L., Clifford, E., & Schwartz, A. L. (2009). Understanding New York Law, 2013-14.\nUpstate Legal Publishing\nS. (n.d.). NGUYEN v. HOLDER | 24 N.Y.3d 1017 (2014) | By SMITH | 20141028242.\nRetrieved July 27, 2018, from https://www.leagle.com/decision/innyco20141028242\nOffice of Children and Family Services. (n.d.). Retrieved July 27, 2018, from\nhttps://ocfs.ny.gov/adopt/\nRaise the Age. (2018, July 03). Retrieved July 27, 2018, from\nhttps://www.ny.gov/programs/raise-age-0\nRaise the Age Home. (n.d.). Retrieved July 27, 2018, from http://raisetheageny.com/\n\n272\n\n\x0cCHAPTER 10\nCOMMON ESTATE PLANNING PROCESSES AND DOCUMENTS\nINTRODUCTION\nThis chapter will explain the legal requirements for a valid will in New York, and what happens\nto a person\xe2\x80\x99s property if they die without a will. Basic estate planning terms will be defined.\nAlternatives to wills, or \xe2\x80\x9cwill substitutes,\xe2\x80\x9d will be discussed, such as jointly held bank accounts,\njointly held real estate, trusts, and life insurance. Finally, other documents related to estate\nplanning will be explained such as a Power of Attorney, living wills, and a health care proxy.\n\nWILLS AND ESTATES\nTERMS ASSOCIATED WITH WILLS AND ESTATES:\nAdministrator \xe2\x80\x93 When an individual dies intestate (without a will), the Surrogate\'s Court appoints\nan administrator to protect the assets of the estate and to make sure they are distributed in\naccordance with law. An administrator receives Letters of Administration from the court, which\nare proof that this person has authority to act on behalf of the estate.\nBeneficiary \xe2\x80\x93 A person who receives money or property under a will, trust or insurance policy.\nDecedent/Deceased \xe2\x80\x93 The person who died.\nDying Intestate \xe2\x80\x93 Dying without a will.\nEstate \xe2\x80\x93 An estate is all the personal and real property owned by a person when he/she dies.\nEstate Taxes \xe2\x80\x93 Taxes owed to the federal government or the State of New York by a person\xe2\x80\x99s\nestate when they die.\nExecutor/Executrix \xe2\x80\x93 A person (executor is a male, executrix is a female) who is appointed\n(named) in a will to run the estate after the testator/testatrix dies. It is the role of the executor to\nprotect the assets of the estate and to ensure that assets are distributed in the manner set forth in\nthe will. An executor or executrix receives Letters Testamentary from the Surrogate\'s Court as\nproof that he or she has authority to act on behalf of and for the estate.\nGuardian \xe2\x80\x93 A person appointed by a court to make decisions regarding the care for a minor or\npersons unable to make their own decisions.\nHealth Care Proxy \xe2\x80\x93 A formal legal document that a person signs designating another individual\nto make critical medical decisions on the person\xe2\x80\x99s behalf if the person is unable to do so for them\nself. A Health Care Proxy is usually signed in conjunction with a Living Will.\nHolographic Will - A will made by a person entirely in his/her handwriting.\nIntestate \xe2\x80\x93 When a person dies without a will.\nLife Insurance \xe2\x80\x93 Life insurance is a contract between an individual and a life insurance company\nwhere the company collects a yearly premium in exchange for the promise to pay a stated sum\nupon the death of the individual.\n273\n\n\x0cLiving Will \xe2\x80\x93 A formal legal document made by a person prior to a life-threatening disease or\ninjury, outlining the medical treatment a person wants if the person cannot express such\nthemselves. A Living Will is usually signed in conjunction with a Health Care Proxy.\nNuncupative Will - A will is nuncupative when it is unwritten, and the making thereof by the\ntestator and its provisions are clearly established by at least two witnesses.\nPower of Attorney \xe2\x80\x93 A formal legal document that a person signs giving another person to sign\ncertain legal documents on his/her behalf.\nProbate \xe2\x80\x93 Probate means to formally bring the will before the Surrogate\'s Court. Once all the\nprocedures have been completed, all the proper forms signed, all estate taxes paid, and the assets\ndistributed according to the wishes of the testator/testatrix, the will is said to have \xe2\x80\x9cgone through\nprobate.\xe2\x80\x9d\nPublishing a Will \xe2\x80\x93 Publishing a will means that the testator/testatrix declares the will to be his/her\nLast Will and Testament in front of the witnesses.\nSurrogate\'s Court \xe2\x80\x93 The court in New York State where wills are probated.\nTestamentary Trust \xe2\x80\x93 A trust created by will that comes into existence upon the death of the\ndecedent and the probate of the will.\nTestator \xe2\x80\x93 A man who makes a will.\nTestatrix \xe2\x80\x93 A woman who makes a will.\nWill - A formal legal document that passes property from one person to another upon the death of\nthe first person.\nWitnesses \xe2\x80\x93 In New York, at least two witnesses must be present when the testator/testatrix makes\nor executes (signs) the will.\nWILLS: Wills require very specific legal formalities to be valid.\n\xe2\x80\xa2\n\nA will must be in writing (New York Estates, Powers and Trusts Law [EPTL] Section 32.2). New York does not recognize oral wills.\n\n\xe2\x80\xa2\n\nThe person making the will, must be of sound mind, and be 18 years of age or older.\n(EPTL Section 3-1.1)\n\n\xe2\x80\xa2\n\nThere must be two witnesses (EPTL Section 3-2.1 [4]) that are unrelated to the decedent\npresent when the will is being signed.\n\n\xe2\x80\xa2\n\nNew York does not recognize nuncupative or holographic wills. The only exception is if\nthe nuncupative or holographic will is made by a soldier or sailor in time of war (EPTL\nSection 3-2.2).\n\nWHY DO I NEED A WILL? The main reason you need a will is so you can decide who gets\nyour property upon your death. If you have a spouse and children, this can be very important as\nthe intestate statute may not distribute your property as you may wish. If you have a child, you can\n274\n\n\x0cname a guardian in your will that you want to care for your child in the event your spouse cannot\ndo so. You can also create a trust to care for the financial needs of your child upon your death.\nWHAT HAPPENS IF I DIE WITHOUT A WILL? Contrary to popular misconceptions, the\ngovernment rarely takes your property if you die without a will. EPTL Section 4-1.1 sets out how\na person\xe2\x80\x99s property will be distributed if they die without a will or intestate. NYS will only take\nan intestates estate if there is no will and no living relatives. Note, intestacy does not extend beyond\nfirst cousins once removed.\nTo determine who is a first cousin once removed, remember that first cousins share a grandparent,\nsecond cousins share a great-grandparent, third cousins share a great-great-grandparent. The term\n"removed" refers to the number of generations separating cousins. Your parent\'s first cousin is\nyour first cousin once removed. The child of your first cousin is also your first cousin once\nremoved: your grandparent is that child\'s great-grandparent.\nThe following chart explains intestate distribution pursuant to EPTL Section 4-1.1 up to nieces\nand nephews.\nStatus of Person Upon Death\nSingle, parents alive\nMarried, parents alive\nMarried with children, parents alive\nSingle, with children\nSingle, no surviving spouse, parents,\nchildren, grandchildren, brothers, or\nsisters\n\nRecipient of Money or Property\nAll to parents\nAll to surviving spouse\nWife gets $50,000 plus one-half of the\nbalance of the estate, remainder to children in\nequal shares\nAll to children in equal shares\nAll to nieces and nephews in equal shares\n\nCAN I DISINHERTI MY CHILDREN IN MY WILL? Yes. There is nothing under the law\nthat prohibits a person from doing so. There are legitimate reasons for doing so besides\nestrangement. People often distribute funds to one child while they are alive for college or the\nbuying of a home and consider that that child\xe2\x80\x99s inheritance. Or perhaps other children have\ngreater needs than some due to age, abilities, or education.\nIF I MAKE A WILL, CAN I COMPLETELY DISINHERIT MY SPOUSE? No. New York\nlaw protects the surviving spouse from such. If a testator leaves a will leaving nothing or little to\na surviving spouse, the law provides an option to this spouse. The surviving spouse has the\nchoice to "elect against the will" and thereby claim $50,000.00, or one-third of the estate\nwhichever amount is greater pursuant to EPTL Section 5.1.\n\n275\n\n\x0cCOMMON TERMS OF A SIMPLE WILL: The following are common terms found in most\nsimple NYS wills.\n1. The first paragraph of a will usually declares that this is the Last Will and Testament of the\nmaker (testator), and states that he is of sound mind and understands what he is doing. It\nalso generally states the name and place of residence of the person making the will.\n2. Most wills recite that the debts and funeral expenses will be paid by the estate.\n3. Often a simple will may set forth a specific bequest, such as a wedding ring, a sum of\nmoney, or a particular item of furniture to a specific loved one.\n4. Most simple wills give the remainder of the entire estate to the surviving spouse with a\nprovision that if the other spouse does not in fact survive the testator (testatrix), or if both\ndie as a result of a common accident or illness, the estate shall be given to some other\nalternate beneficiary which is usually their children.\n5. A will almost always names an executor/executrix and an alternate in the event that the\nnamed executor/executrix is unable to serve, or has predeceased the testator.\n6. If the testator has minor children, the will usually names a guardian and an alternate\nguardian to care for the infant children in the event the other parent has predeceased the\ntestator or dies at the same time.\n7. If the testator has minor children, the will usually has provisions for a Testamentary Trust\nto care for their children\xe2\x80\x99s financial needs. This duration of the trust is set by the testator.\nThe age of the child that the trust will be terminated with the remaining trust funds\ndistributed to the child is determined by the testator. The trustee or person who administers\nthe trust is named by the testator. It may or may not be the same person as the guardian.\nThe following is an example of a simple will of a married couple with two adult children.\n\n276\n\n\x0cLAST WILL AND TESTAMENT\nOF\nMARY C. SMITH\nI, Mary C. Smith, presently residing in the City of Rochester, County of Monroe, State of\nNew York, being of sound mind and memory, do make, publish, and declare this to be my Last\nWill and Testament, in the manner following, that is to say:\nFIRST: I direct that all legally enforceable debts and my funeral expenses be paid, and I\nhereby revoke all former Wills and Codicils heretofore made by me.\nSECOND: I bequeath my wedding ring to my daughter Sarah Smith. All the rest, residue,\nand remainder of my estate both real and personal, including but not limited to all household goods,\npersonal effects, jewelry, clothing, and any other items of personal property, of whatsoever nature\nand wheresoever situate, I give, devise, and bequeath, absolutely to my husband, John T. Smith.\nTHIRD: If my husband predeceases me, I hereby give, devise and bequeath my estate to\nSarah Smith and Anthony Smith in equal shares, per stirpes, and I hereby give, devise, and\nbequeath each such share to my Trustee, hereinafter named, on separate and distinct trusts, for the\nbenefit of each of them for the following uses and purposes:\nA. To hold, manage, invest, and reinvest in said property; to collect and receive the income\nthere from; to accumulate the said income; to invest and reinvest the said accumulated income;\nand to pay so much of said income and accumulated income as each Trustee shall deem necessary\nfor the support, maintenance, welfare, education, and comfort of each of them who are under the\nage of thirty (30) years.\nB. I hereby authorize my Trustee to deliver to the beneficiaries of these trusts, any such\narticles of tangible personal property as he/she deems appropriate or retain for later delivery of\nsuch article, as in his sole discretion he deems advisable, or sell any and all personal property for\nthe benefit of the trusts. All the determinations made by the Trustee regarding this tangible\npersonal property shall be final and not subject to judicial review. As each beneficiary shall attain\nthe age of thirty (30) years, the Trustee shall thereupon pay over and distribute to each beneficiary\nthe then principal and any accumulated income of the trust. The separate trust for each beneficiary\nshall then terminate. Should any them who is a beneficiary of one of these trusts, die before\nattaining the age of thirty (30) years, the interest of such beneficiary and the income or principal\nof the trust shall be paid over and distributed to the surviving issue of each beneficiary, per stirpes,\nor if my beneficiary shall die without issue surviving, I direct that their such share be paid and\npoured over to either the trust for the benefit of my surviving beneficiaries established pursuant to\nthis Will or directly to my surviving beneficiaries if he/she is of an appropriate age to receive this\nbequest free of trust.\nFOURTH: I nominate, constitute and appoint my sister Michele Jones as Trustee of this,\nmy Last Will and Testament for the above-named trusts. In the event that my Trustee shall\npredecease me or for any reason be disabled, unwilling, or unable to act either at the time of my\ndeath or during the administration of my estate and/or said trusts, in any such events, I nominate,\nconstitute, and appoint my brother Charles Jones as Alternate Trustee of this, my Last Will and\n277\n\n\x0cTestament, with the full power herein stated. In addition to and without limitation upon the general\npowers and authority of my Trustee, I hereby authorize my Trustee:\nA. To sell mortgage, lease, or hold for investment or for the use of my beneficiaries, if\ndetermined to be in the best interest of my beneficiaries, any real property forming part of any\ntrust, in such manner and upon such terms as he/she may deem proper.\nB. To pay either from principal or income of the trust any taxes, upkeep, costs of repair or\nother expenses that may be necessary on, or to maintain real property retained in the trust for the\nuse and benefit of my beneficiaries.\nC. To retain any investment forming part of my estate so long as he/she deems it proper\nand to invest and reinvest the funds of any trust in such common or preferred stocks, bonds,\ncommon trust funds, or other personal or real property as he/she may select, without restriction to\nthe investments prescribed by law for the trust funds.\nD. To set off and distribute in kind to the respective beneficiaries any and all of the\nsecurities or investment forming part of any trust at its termination, at the duly appraised value\nthereof and in such proportions and amounts as to the respective securities and as to the respective\nbeneficiaries as the Trustee may determine, in his/her discretion, to be equitable and for the best\ninterests of the trust.\nE. To adequately and properly provide for the health, wealth, maintenance, education,\nsupport, or comfort of my beneficiaries, and to draw from the trust any funds that he/she might\nneed for these purposes.\nFIFTH: I hereby nominate, constitute, and appoint my husband John T. Smith,\nExecutor/Executrix of this, my Last Will and Testament. I direct that no fiduciary named herein\nneed give bond or surety. I further give my Executor/Executrix the authority to lease, sell,\nmortgage, convey, or retain any and all personal property which I may own at the time of my death\nin such manner and at such time as he/she shall deem in the best interest of my estate. My\nExecutor/Executrix is hereby given the authority to decide which items of personal property he/she\nwill distribute to the Trustee for the benefit of each trust hereunder. The decision of my\nExecutor/Executrix as to which trust will receive which items of tangible personal property will\nbe final and not subject to judicial review. In the event that my Executor/Executrix shall\npredecease me or for any reason be disabled, unwilling, or unable to act either at the time of my\ndeath or during the administration of my estate, in any such events, I nominate, constitute and\nappoint my sister Michele Jones as Alternate Executor/Executrix of this my Last Will and\nTestament, with the full power herein stated.\nSIXTH: I authorize and empower my fiduciary, as he/she shall deem appropriate, in his/her\ndiscretion, to make, or refrain from making, elections permitted under any applicable income,\nestate or inheritance tax law without regard to the effect of any such election on the interest of any\nbeneficiary of my estate. No beneficiary under this Will shall be entitled to a compensating\nadjustment, even though the exercise of these powers affects the size or composition of my estate\nor of any disposition under this Will.\nSEVENTH: I direct that all estate, inheritance, legacy, succession, or other death taxes\nand duties of any nature that may be assessed or imposed by the United States of America, or by\nthe State of New York, or by any other jurisdiction, be paid from my residuary estate. All such\ntaxes with respect to property not passing under the provisions of this Will but upon which property\n278\n\n\x0csuch taxes are assessed or imposed, including all such taxes assessed or imposed upon the proceeds\nof any and all policies of insurance upon my life are also to be paid out of my residuary estate.\nLASTLY: If pursuant to any provision of this Will all or any part of my estate shall vest in\nabsolute ownership in a minor or minors (or if at the termination of any trust created by this Will\nor a portion of principal of such trust shall vest in absolute ownership in a minor or minors), I\nauthorize my Executor/Executrix (or Trustee) to hold the same without bond and in his/her\nabsolute discretion and without authorization by any court:\nA. To defer, in whole or part, payment or distribution of any or all property to which such\nminor may be entitled, holding the whole or the undistributed portion thereof as a separate share\nfor such minor with all the powers and authority conferred by the provisions of this will including,\nwithout limitation, the power to retain, invest, and reinvest, principal without being limited to\ninvestments authorized by law for trust funds.\nB. To pay, distribute, or apply the whole or any part of any net income or principal at any\ntime held for any such minor, to or for the support, education, and general welfare of such minor,\neither directly or by making payment or distribution thereof to the guardian or other legal\nrepresentative, wherever appointed, of such minor or to the person with whom such minor shall\nreside (without obligation to see to the proper application thereof) or to such minor personally, or\nby distributing the whole or part of such share to a Custodian under the New York Uniform\nTransfers to Minors Act, and to pay or distribute any balance thereof to such minor when such\nminor attains his or her majority or, in case such minor shall die before distribution of all the\nproperty held under this Article, to the Executor/Executrix or Administrator of the estate of such\nminor.\nThe receipt of the person or persons to whom any such payment or distribution is so made shall be\na sufficient discharge therefore even though my Executor/Executrix may be such person.\nMy Executor/Executrix (and the Trustee) shall not be required to render and file annual\naccountings with respect to property so held under this Article of my Will.\nMy Executor/Executrix (and the Trustee) shall be entitled to receive compensation with respect to\nany property held for any minor pursuant to this Article at the same rate and in the manner payable\nto testamentary Trustees under the State of New York.\nIN WITNESS WHEREOF, I have hereunto subscribed my name on _______________, 20___.\n________________________________________L.S.\nMary C. Smith\n\nWE, whose names are hereto subscribed, Do Certify, that on _______________, 20__, the\nTestator, MARY C. SMITH, subscribed her name to this instrument in our presence and in the\n279\n\n\x0cpresence of each of us, and at the same time in our presence and hearing, declared the same to be\nher Last Will and Testament and requested us and each of us, to sign our names thereto as witnesses\nto the execution thereof, which we hereby do in the presence of the Testator and each of us, on the\nday of the date of the said Will, and write opposite our names our respective places of residence.\n_________________________ residing at __________________________________________\n__________________________________________\n_________________________ residing at __________________________________________\n__________________________________________\nWILL SUBSTITUTE:\nEven if a will exists, not all the property a person owns will be probated. Some assets pass outside\nof a will as a matter of law. They are often called will substitutes. The most common example is\njointly held property. Some will substitutes we will examine are:\nA.\nB.\nC.\nD.\n\nGifts\nJointly held property\nTrusts\nLife Insurance policies\n\nGifts: As part of estate planning, some people make gifts to people of their choice instead of\nwaiting until the die to do so. Each year, a person may give away some of their money tax free. In\n2018, the federal limit is $15,000 to any individual from any individual. Assets you give away\nduring your lifetime will not be a part of your estate after you die.\nJointly Held Real Property: When real property is held either as a \xe2\x80\x9ctenancy by the entirety\xe2\x80\x9d or\nas \xe2\x80\x9cjoint tenants,\xe2\x80\x9d the surviving owner takes title of the real property upon the death of the other\nowner. This transfer of the property interest takes place by operation of law. It takes place\nautomatically, regardless of whether the other owner died with or without a will. It also does not\nmatter if the deceased owner states otherwise in the will by declaring their property interest will\npass to someone other than the surviving owner. Jointly held real estate passes outside of the will.\nJointly Held Bank Accounts: When two individuals are named on a bank account as joint owners,\nthe bank account passes automatically to the surviving owner upon the death of the deceased. The\ntransfer happens as a matter of law much in the same way as jointly held real property.\nTrusts: A trust is a formal legal document by which a person\xe2\x80\x99s assets are managed by a trustee for\nthe benefit of another person called a beneficiary. Trusts can either be created by will called a\ntestamentary trust, or during the lifetime of the grantor called an intervivos trust.\nLife Insurance: Life insurance is a contract between an individual and a life insurance company\nwhereby the company agrees to pay a stated sum upon the death of the individual. The person\nwho buys the contract designates an individual or individuals who will receive the money upon\n280\n\n\x0ctheir death. These individuals are known as beneficiaries. The two basic forms of life insurance\nare called term and whole life. Life insurance is often part of an employment benefits package with\nthe amount of insurance to be paid upon one\xe2\x80\x99s death based on the salary of the employee.\nLife insurance is often purchased as a safety net for families in the event the primary income\nprovider dies unexpectedly. It is also used by partners in a business to help the remaining living\npartners financially in the event of the unexpected death of a partner would put the business in\nfinancial jeopardy.\nTerm Insurance: This type of lift insurance protects an individual over a stated term. If\npurchased while young and in good health, this can be very inexpensive life insurance. As a\nperson\xe2\x80\x99s age increases or their health deteriorates, the risk of death increases and so do the\ninsurance premiums. Term insurance is pure insurance and provides no investment value. An\ninsurance company will only pay out the money contracted for through the death of the insured\nduring the term period.\nWhole Life Insurance: This type of life insurance provides protection to an insured\xe2\x80\x99s\nbeneficiaries in the same manner as term life insurance. However, it includes an element of\ninvestment. A portion of the premiums paid are set aside as an investment, much like a savings\naccount, accumulating cash value. Cash value builds up over time. Upon termination of the life\ninsurance portion of the policy, the cash value still remains and is payable to the insured or the\ninsureds beneficiaries. Whole life insurance is more expensive and usually has higher premiums\nthan term life insurance.\nWHAT IS A POWER OF ATTORNEY?\nA Power of Attorney is a formal legal document that gives one person the permission to act on\nanother\'s behalf. While the word attorney is part of the name of this legal document, it has nothing\nto do with being an attorney or requiring that the person with the power to sign documents on\nbehalf of another has to be an attorney. A person with a power of attorney can buy a car, sell a\nhouse, sign checks, pay bills, and sign just about any legal document for another person. However,\nthey cannot write a Will for the other person.\nA Power of Attorney expires and terminates automatically upon the death of the principal. If a\nPower of Attorney is used to convey an interest in real property, it must be recorded in the County\nClerk\'s Office. A Power of Attorney can be terminated at any time by the principal. The principal\nsigning a Power of Attorney must be of sound mind and mentally capable so that they understand\nwhat they are signing.\nNew York State has what are called a \xe2\x80\x9cdurable power of attorney\xe2\x80\x9d that remains valid even in the\nevent of the subsequent disability of the principal who signed the Power of Attorney. This means\nthat the person designated to sign on behalf of the principle, can still act even though the principle\nis incapacitated (NY General Obligations Law Section 5-1501).\nWHAT IS A GUARDIAN?\nA guardian is a person appointed by a court to make decisions regarding the care for a minor or\npersons unable to make their own decisions. Guardians may be appointed by different courts\n281\n\n\x0cdepending on the circumstances. A guardian may be necessary for a minor child whose parents are\nnot capable of taking care of them. A guardian may be appointed for an elderly person who cannot\ntake care of themselves. The powers of a guardian will depend on the circumstances and needs of\nthe person they are to care for.\nWHAT IS A LIVING WILL?\nA living will is a formal legal document made by a person prior to his life-threatening disease or\ninjury, outlining what medical treatment they want if they cannot express their own wishes. It\nusually includes whether they should be allowed to die without the intervention of life-sustaining\nprocedures and equipment. When there is no living will, family of the injured person will have to\ndemonstrate to a court that the person left \xe2\x80\x9cclear and convincing\xe2\x80\x9d evidence that they would not\nwant to be kept alive by extraordinary measures.\nWHAT IS A HEALTH CARE PROXY?\nA health care proxy designates another individual to make critical medical and life support\ndecisions on your behalf if you were to become unable to make such decisions.\nA living will states a person\xe2\x80\x99s intent and wishes regarding their medical treatment whereas a health\ncare proxy provides for a "designated decision maker\xe2\x80\x9d to do so for a person when they are not\ncapable of doing so themselves. These documents are usually signed together and in conjunction\nwith each other. Both a living will and a health care proxy documents do not need to be signed\nwith the assistance of an attorney.\nSENIOR LIVING ARRANGEMENTS\nWith an ever-increasing elderly population that is living longer, the options of living arrangements\nfor the seniors have grown. The following are three types of senior living facilities. The definitions\nare very general and not definitive. There are many variations on a theme with these types of\nfacilities.\nIndependent Living Facility: Residents live in independent apartments but can eat one or two\nmeals a day in a dining center. They typically have their laundry and apartment cleaning done for\nthem. There may be a pool or recreation center, and common areas such as libraries and game\nrooms available. The apartments are designed for seniors, with wide doorways and grab bars in\nthe showers. Many residents still drive their own autos and come and go as they please. 24-hour\nsecurity and safety monitoring may be available. Generally, nursing care or nurses aids are not\nprovided.\nAssisted Living Facilities: In many ways, these facilities are like the independent living facilities\nexcept an on-site nurse is most likely available to assist with medications and monitor health care\nconditions. A staff doctor may visit the facility on a periodic basis. While some members may\nstill drive, it is more likely that residents will go shopping and attend events in a facility sponsored\nbus. Generally, a resident in assisted living has to be able to dress, feed, bathe, and toilet\nthemselves. They usually have to be able get themselves to the dining room for meals.\nNursing Home: These facilities are for the very old, the sick, and the frail. Usually the resident\nis there because they can no longer independently perform certain daily living activities such as\n282\n\n\x0cbathing, toileting, dressing, and feeding. All meals are provided. There are 24-hour\nnurses available on the premises, with staff doctors on call. Many residents have been recently\nhospitalized but are sent to a nursing home when they no longer require the higher level of medical\ndiagnosis and treatment provided in a hospital setting. The cost of nursing home care is very\nexpensive and can cost as much as $10,000 and more per month.\nMedicaid: Most elderly people who enter a nursing home, even those who saved during their\nlives, will eventually run out of money. When a person runs out of money, Medicaid coverage\nkicks in and the costs of the nursing home is paid by the government and ultimately the\ntaxpayers.\nThe Medicaid rules are very complicated. Although there are many exceptions (your home, your\ncar, some of the community spouse\xe2\x80\x99s assets, etc.), a single person does not become eligible for\nMedicaid until he/she has spent all of his assets except $14,400. In addition, an individual may\nset up a special prepaid funeral account to cover burial expenses and still qualify. The nursing\nhome resident must then pay each month to the nursing home his/her social security benefits and\nany other sources of income, except for $50/month to be used for personal care items.\nSome people try to give away money to their children or other relatives in an attempt to protect\ntheir family assets. However, the government can look back at these gifts and transfers and\nrequire that they be returned. The look back rule as of 2018 is five years from the date of the\nMedicaid application.\nThe following document is an example of a Living Will and Health Care Proxy.\nNEW YORK LIVING WILL AND HEALTH CARE PROXY\nI, __________________________________, being of sound mind, make this statement as a\ndirective to be followed if I become permanently unable to participate in decisions regarding my\nMedical care. These instructions reflect my firm and settled commitment to decline medical\ntreatment under the circumstances indicated below.\nI direct my attending physician and other medical personnel to withhold or withdraw treatment\nthat serves only to prolong the process of my dying, if I should be in an incurable or irreversible\nmental or physical condition with no reasonable expectation of recovery.\nThese instructions apply if I am: a) in a terminal condition; b) permanently unconscious; or c) if I\nam conscious but have irreversible brain damage and will never regain the ability to make\ndecisions and express my wishes.\nI direct that treatment be limited to measures to keep me comfortable and to relieve pain,\nincluding any pain that might occur by withholding or withdrawing treatment. While I\nunderstand that I am not legally required to be specific about future treatments, if I am in the\ncondition(s) described above, I feel especially strong about the following forms of treatment.\n\n283\n\n\x0cI do not want cardiac resuscitation.\nI do not want mechanical respiration.\nI do not want tube feeding.\nI do not want antibiotics.\nI do want maximum pain relief.\nOther instructions (insert personal instructions):\nI HEREBY APPOINT\nName: _______________________________________________________________________\nAddress: _____________________________________________________________________\nPhone Number: ________________________________________________________________\nas my health care proxy to make all health care decisions for me in conformity with the\nguidelines I have expressed in this document. I direct my proxy to make health care decisions in\naccordance with my wishes and instructions as stated above or as otherwise known to him or her.\nI also direct my agent to abide by any limitations on his or her authority as stated above or as\notherwise known to him or her.\nIn the event my health care proxy is unable, unwilling, or unavailable to serve as such, then I\nappoint as my substitute health care proxy (with the same powers that I have heretofore\nenumerated).\nName: _ ______________________________________________________________________\nAddress: _____________________________________________________________________\nPhone Number: ____________________________________________________________\nI understand that unless I revoke it, this living will and health care proxy will remain in effect\nindefinitely.\nThese directions express my legal right to refuse treatment, under the laws of New York. Unless\nI have revoked this instrument or otherwise clearly and explicitly indicated that I have changed\nmy mind, it is my unequivocal intent that my instructions as set forth in this document be\nfaithfully carried out.\nSignature: _____________________________________________________________________\nAddress: _____________________________________________________________________\nDated:\n\n____________________________\n\nStatement By Witnesses (Must Be 18 or Older)\nI declare that the person who signed this document is personally known to me and appears to be\nof sound mind and acting of his or her own free will. He or she signed (or asked another to sign\nfor him or her) this document in my presence.\nWitness: ______________________________________________________________________\nAddress: ______________________________________________________________________\n284\n\n\x0cDated: _____________________________\nWittness:\n______________________________________________________________________\nAddress: ______________________________________________________________________\nDated:\n\n_____________________________\n\nKEEP THIS SIGNED ORIGINAL WITH YOUR PERSONAL PAPERS AT HOME.\nGIVE COPIES OF THE SIGNED ORIGINAL TO YOUR DOCTOR, FAMILY,\nLAWYER AND OTHERS WHO MIGHT BE INVOLVED IN YOUR CARE.\n\nReferences:\nNew York Consolidated Laws, Estates, Powers and Trusts Law - EPT \xc2\xa7 3-2.1. (n.d.). Retrieved\nJuly 27, 2018, from https://codes.findlaw.com/ny/estates-powers-and-trusts-law/ept-sect-3-21.html\nNew York State. (2014, November 13). When There Is No Will. Retrieved July 27, 2018, from\nhttps://www.nycourts.gov/courthelp/WhenSomeoneDies/intestacy.shtml\nNew York State. (2015, January 5). Last Will and Testament. Retrieved July 27, 2018, from\nhttps://www.nycourts.gov/courthelp/WhenSomeoneDies/will.shtml\nNew York State. (2016, March 17). Probate. Retrieved July 27, 2018, from\nhttps://www.nycourts.gov/courthelp/WhenSomeoneDies/probate.shtml\nNew York State Department of Health. (2017, November). Health Care Proxy Appointing Your\nHealth Care Agent in New York State. Retrieved July 27, 2018, from\nhttps://www.health.ny.gov/publications/1430.pdf\nNew York State Office of the Attorney General. (n.d.). A Housing Guide for Senior Citizens.\nRetrieved July 27, 2018, from https://ag.ny.gov/sites/default/files/senior-housing-guide.pdf\nPogue, D. L., Clifford, E., & Schwartz, A. L. (2009). Understanding New York Law, 2013-14.\nUpstate Legal Publishers\n\n285\n\n\x0cCHAPTER 11\nTAXES\nINTRODUCTION\n\xe2\x80\x9cOur new Constitution is now established, and has an appearance that promises permanency; but\nin this world nothing can be said to be certain, except death and taxes.\xe2\x80\x9d Benjamin Franklin, 1789.\nCertainly, taxes are a part of our lives. Taxes are legally imposed and collected in a variety of ways\nby our local, state, and federal governments. Since we all have to pay taxes, having a better\nunderstanding about them makes sense.\nWe expect our government to provide us with certain services like law enforcement, courts,\ninfrastructure, military protection, food safety, a clean environment, and a host of other services.\nThese services are paid for by taxes. Where you live, how much you spend, and how much you\nearn affect how much you pay in taxes. There several types of taxes that we pay. This chapter will\nexplain income taxes, FICA, sales taxes and property taxes.\n\nINCOME TAXES\nTHE HISTORY OF INCOME TAX LAW: The original founders of the U.S. Constitution\nauthorized the newly formed federal government to collect taxes. Article I, Section 8, Clause 1 of\nthe U.S. Constitution states:\nThe Congress shall have Power to lay and collect Taxes, Duties, Imposts and\nExcises, to pay the Debts and provide for the common Defence and general Welfare\nof the United States; but all Duties, Imposts and Excises shall be uniform\nthroughout the United States.\nArticle I, Section 9, Clause 4 of the U.S. Constitution states:\nNo Capitation, or other direct, Tax shall be laid, unless in proportion to the Census\nor Enumeration herein before directed to be taken.\nHowever, this authorization to collect taxes in the original Constitution has several restrictions. It\nrequired taxes to be uniform throughout the country. The Constitution also states no \xe2\x80\x9cCapitation,\nor other tax\xe2\x80\x9d meaning a poll tax or head count tax, could be imposed unless it proportional to the\npopulation of the state. Income taxes would not fall into this category. In 1913, the Sixteenth\nAmendment to the U.S. Constitution was ratified which authorizes the collection of taxes based\non income by the federal government.\nThe Congress shall have power to lay and collect taxes on incomes, from whatever\nsource derived, without apportionment among the several States, and without\nregard to any census or enumeration.\n286\n\n\x0cIn 1919, NYS also imposed a state income tax. In addition to the state income tax, Manhattan and\nYonkers eventually passed a city income tax. There are a few states, like Texas and Florida that\ndo not have a state income tax.\nGRADUATED TAX BRACKET SYSTEM: NYS and the Federal government both calculate\nthe amount of income taxes paid by taxpayers using what is called a graduated tax bracket system.\n(This is sometimes referred to as a progressive tax system.) This means taxpayers pay a certain\npercentage of their income in taxes based on the amount of income they earn each year. Various\nincome tax brackets are created based on income ranges. The rate or percentage the taxpayers pay\nin taxes is different for each income tax bracket. This is in contrast to a flat tax system which has\nall taxpayers pay the same percentage in taxes regardless of their income. Generally, this means\nthat taxpayers with higher taxable incomes pay their taxes at a higher percentage rate, and\ntaxpayers with lower taxable incomes pay their taxes at a lower percentage rate. Below are the\n2018 federal income tax brackets and rates associated with each.\nFederal Income Tax Brackets and Rates for 2018*\nFor Unmarried\nFor Married Individuals Filing\nFor Heads of Households,\nRate Individuals, Taxable\nJoint Returns, Taxable Income\nTaxable Income Over\nIncome Over\nOver\n10%\n$0\n$0\n$0\n12%\n$9,525\n$19,050\n$13,600\n22%\n$38,700\n$77,400\n$51,800\n24%\n$82,500\n$165,000\n$82,500\n32%\n$157,500\n$315,000\n$157,500\n35%\n$200,000\n$400,000\n$200,000\n37%\n$500,000\n$600,000\n$500,000\n*Source Tax Foundation 2018 Tax Brackets by Amir El-Sibaie, January 2, 2018\n(https://taxfoundation.org/2018-tax-brackets/ )\nA review of the above chart demonstrates how the graduated tax bracket system works. There are\nseven tax brackets starting with incomes up to $9,525 for a single filer, up to $500,000 for a single\nfiler. The tax rates or percentages start at 10% for the lowest tax bracket up to 37% for the highest\ntax bracket.\nGraduated income tax brackets are deemed to be fairer than a flat tax system because lower income\nindividuals and families typically need more of their income to sustain them. As income increases,\nless of that income is used for the basic necessities like food, clothing, and housing. Increased\nincome also increases what is referred to as disposable income.\nThe Merriam-Webster dictionary defines disposable income as, \xe2\x80\x9cIncome that is left after paying\ntaxes and for things that are essential, such as food and housing.\xe2\x80\x9d (Merriam-Webster.com. 2018.\nhttps://www.merriam-webster.com (20 July 2018) The current tax code is designed to have those\nwith more disposable income carry the higher burden of income taxes because they can afford to\ndo so. Almost half of the tax payers pay no federal income tax, but they still do pay a significant\n287\n\n\x0camount in taxes nevertheless. An article published on April 18, 2018 by Market Watch titled \xe2\x80\x9c46%\nof Americans pay no federal income tax-here\xe2\x80\x99s why\xe2\x80\x9d by Quentin Fottrell confirms the data pointing\nout that, \xe2\x80\x9cAll but the top 20% of American families pay more in payroll taxes than in federal\nincome taxes, according to Treasury Department data, cited by the Pew Research Center.\xe2\x80\x9d\n(https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxesthis-year-heres-why-2018-04-16)\nINCOME TAX PAYMENT PROCESS: The general income tax payment process for a typical\ntaxpayer that is an employee receiving a paycheck from their employer is as follows:\n\xe2\x80\xa2 Upon hire, employee fills out a W-4.\n\xe2\x80\xa2 Employee works for the employer and receives compensation in the form of a paycheck.\n\xe2\x80\xa2 Employer makes withholdings from the taxpayer\xe2\x80\x99s paycheck for taxes and FICA based on\nthe W-4 and sends those withholdings to the state and federal income tax agencies.\n\xe2\x80\xa2 After the end of the year, employer sends the taxpayer and the state and federal income tax\nagencies, the employee\xe2\x80\x99s W-2.\n\xe2\x80\xa2 The employee determines their gross income from the W-2 form to fill out their state and\nfederal income tax returns.\n\xe2\x80\xa2 The employee determines their filing status to fill out their state and federal income tax\nreturns.\n\xe2\x80\xa2 The employee determines their withholdings using their W-2 and uses that information to\nfill out their state and federal tax returns.\n\xe2\x80\xa2 The employee determines their deductions and tax credits to calculate their taxable income\nand income tax liability.\n\xe2\x80\xa2 The employee signs and files their state and federal tax returns with the respective income\ntax agencies.\nFILING STATUS: A review of the tax brackets chart above indicates three different tax filing\nstatuses; unmarried individuals, married individuals filing joint returns, and heads of households.\nNot mentioned above is married filing separately. Filing status affects tax rates. Married couples\nhave a choice on how to file, which is usually by their respective incomes. Below is a brief\nsummary of 4 of the most common filing statuses.\n(1) An unmarried individual is a taxpayer who is single.\n(2) Married filing joint is for married taxpayers who are filing their taxes together.\n(3) Married filing separately is for married taxpayers who choose to file separate income tax\nreturns.\n(4) Head of Household is for individuals who:\n\xe2\x80\xa2 file separately;\n\xe2\x80\xa2 are unmarried, or are considered to be unmarried by living apart from their spouse for\nat last six months of the tax year;\n\xe2\x80\xa2 provided more than 50% of household support for the main home in which the taxpayer\nlived during the tax year;\n\xe2\x80\xa2 supported at least one qualifying dependent child during the tax year.\nSTANDARD DEDUCTION, ITEMIZED DEDUCTIONS, TAX CREDITS, & TAXABLE\nINCOME: The amount one pays in income taxes is not totally based on a taxpayer\xe2\x80\x99s income alone.\nThe standard deduction or itemized deductions play an important role in the income tax system.\n288\n\n\x0cThey are used to determine what a taxpayer\xe2\x80\x99s taxable income will be. That, in turn, determines\nwhat tax bracket a taxpayer will be in and that in turn determines what tax rate the taxpayer will\npay. (Before the new Tax Cuts and Jobs Act of 2017 law was passed, there were also personal and\ndependent exemptions allowed. Those were eliminated in 2018.) Deductions are allowed under\nthe tax code for certain expenses that taxpayers incur in that tax year.\nThe tax code is often used to encourage certain behaviors like buying a home or purchasing an\nelectric automobile. To incentivize taxpayers to do certain things, deductions and tax credits are\nmade available which lower the taxable income of taxpayers and thereby lower their income taxes.\nTaxpayers have a choice of using the standard deduction which is the same for all taxpayers based\non their filing status or itemizing their deductions. Whether a taxpayer itemizes or uses the standard\ndeduction is a calculation the taxpayer has to make to determine which is more advantageous for\nthem. Higher income earners tend to find that itemizing their deductions is more advantageous that\nusing the standard deduction while the opposite tends to be turn for lower tax earners.\nThe 2018 standard deduction for taxpayers is as follows:\n\xe2\x80\xa2 Single or married filing separately: $12,000\n\xe2\x80\xa2 Married filing jointly: $24,000\n\xe2\x80\xa2 Head of household: $18,000\nDeductions are different than tax credits. Deductions are used to determine what the taxable\nincome. For example, if a single taxpayer earns $50,000 and takes the standard deduction of\n$12,000, that taxpayer\xe2\x80\x99s taxable income is $38,000. The tax rate for $38,000 is 12% versus the tax\nrate for $50,000 which is 22%. The very basic math calculation is the taxpayer will owe $4,560 in\nfederal income taxes. Now, if a taxpayer also has a tax credit, that credit will be applied to the\nactual tax amount owned. Taking our above example, if this taxpayer also has a dependent child\nthat the taxpayer cares for and supports, there is a $2,000 tax credit allowed. The taxpayer will\nnow pay $2,560 in federal taxes after taking the tax credit.\nSome of the deductions available are for mortgage interest, student loan interest, and medical\ninsurance. Some of the tax credits available are for dependent children, college education, earned\nincome credit, (for low income earners with dependent children) and child care.\nW-4 FORM: The W-4 form is used by an employer to determine how much they will withhold\nfrom an employee\xe2\x80\x99s paycheck. Withholding refers to the amount of money an employer holds as\nprepayment of income taxes and FICA contributions from an employee\xe2\x80\x99s paycheck and sends to\nthe New York State Department of Taxation and Finance and the Internal Revenue Service on\nbehalf of the employee. To make this determination, all employees fill out a W-4 form with their\nemployers. The information the employee provides on the form provides the employer with the\ncorrect information to determine how much the employer should withhold from the employees\npaycheck for income tax purposes.\nThe W-4 form gives an employee the opportunity to choose how the number of allowances they\nwant to claim. Allowances are the anticipated deductions and/or credits the employee anticipates\nthey will claim on when they file their federal and state income tax forms. The more allowances a\n289\n\n\x0ctaxpayer claims, the less the employer will withhold for taxes from the employees paycheck. This\ncan result in more or less money in the taxpayer\xe2\x80\x99s paycheck, but it can also determine how much\nof a refund or taxes the taxpayer may own when they file.\n\n1040-ES FORM: Taxpayers who are self-employed don\xe2\x80\x99t necessarily receive a paycheck with an\nemployer withholding funds for prepayment of income taxes and FICA. Therefore, self-employed\ntaxpayers make what are called estimated tax payments using form 1040-ES. The estimated\npayments are just that, an estimate of how much the self-employed taxpayer will owe in income\ntaxes and FICA contributions based on the income of the taxpayer. The estimated tax payments\nare paid quarterly during the year starting in April, then again in June, September, and January of\nthe following year. If estimated payments are more than the required tax liability, there is a refund\nof the difference. If the estimated payments are less than the tax liability, the taxpayer owes a\nbalance due. If the estimates by the taxpayer are too low, the taxpayer can also be fined.\n\nW-2 FORM: The W-2 form is formally called the Wage and Tax Statement form. It is the official\nrecord of how much a taxpayer earned from a particular employer in that tax year. It provides the\ntaxpayer and the state and federal income tax agencies, along with the Social Security\nAdministration, with the amount of gross income earned by the employee, the withholdings for\nstate and federal taxes, as well as FICA. It also provides information regarding withholdings for\n290\n\n\x0chealth care benefits paid for and provided to the employee by the employer. It shows the amount\nof contributions made by and employee for retirement. The W-2 must be sent to the employee by\nthe employer by the end of January following the tax year. Employees must use their W-2(s) to\nfile their state and federal tax returns.\n\nFEDERAL INSURANCE CONRIBUTIONS ACT (FICA): While already discussed in Chapter\n9 in regards to determining income for the purposes of spousal and child support obligations, FICA\nis worth discussing here again. FICA is the acronym for the Federal Insurance Contributions Act.\nThis is the law passed in 1935 that created Social Security. FICA is a contribution, (not technically\na tax) that all employees and employers pay for Social Security and Medicare benefits. It is\nwithheld from an employee\xe2\x80\x99s paycheck and paid to the federal government. Employers also match\nthese payments. If a person is self-employed, they pay both the employee and employer amount.\nThe percentage of an employee\xe2\x80\x99s income that is used to determine FICA is 6.2% for Social\nSecurity plus 1.45% for Medicare. There is a cap on income at which point the 6.2% for Social\nSecurity is no longer deducted from an employee\xe2\x80\x99s paycheck. That amount in 2018 is $128,700\nand can change each year pursuant the tax code.\nAs mentioned earlier in this chapter, approximately 46% of taxpayers do not pay federal income\ntaxes. However, all taxpayers pay FICA. While FICA is technically not called a tax, it is a\nsignificant withholding from all taxpayers incomes. It is based on the taxpayer\xe2\x80\x99s gross income, not\ntaxable income.\nINCOME TAX FORMS: While in the past there where three federal personal income tax return\nforms that taxpayer\xe2\x80\x99s could choose from, the 1040EZ, 1040A, and 1040, under the Tax Cuts and\nJobs Act of 2017, there is only one federal personal income tax return form that all taxpayers will\nuse, the 1040.\n\n291\n\n\x0cThe basic NYS personal income tax form is the IT-201-Resident Income Tax Return. Below is\npage one of four pages of the 2017 version of this return.\n\n292\n\n\x0c293\n\n\x0cOTHER TAXES\nWhile the main focus of this chapter is on income taxes, the tax burden of citizens goes well beyond\njust income taxes. NYS typically ranks as one of, if not the highest tax burden state in the country.\nIn 2012, NYS was ranked first in terms of the highest overall tax burden for its residents. (Source:\nTax Foundation 2018, https://taxfoundation.org/state/new-york/, July 22, 2018.) According to that\nstudy, NYS residents pay 12.7% of their income in state and local taxes. This would be in addition\nto their federal tax liability.\nSo, what are some of these other taxes? NYS has sales taxes, property taxes, hotel occupancy\ntaxes, cellphone surcharges, taxes on utility use, taxes on automobile insurance policies, and even\ncriminal conviction and traffic violations surcharges just to name a few. Some taxes go by other\nnames like fees or surcharges, but regardless of what you call them, they all have the same affect,\nless money in a taxpayer\xe2\x80\x99s pocket.\nSALES TAXES: According to the NYS Department of Taxation and Finance, Sales and use tax\n(sales tax) is applied to:\n\xe2\x80\xa2 tangible personal property (unless specifically exempt);\n\xe2\x80\xa2 gas, electricity, refrigeration and steam, and telephone service;\n\xe2\x80\xa2 selected services;\n\xe2\x80\xa2 food and beverages sold by restaurants, taverns, and caterers;\n\xe2\x80\xa2 hotel occupancy; and\n\xe2\x80\xa2 certain admission charges and dues.\nThe overall sales tax rate in NYS varies depending on where you make your purchase within the\nstate. The NYS rate itself is 4%. Each county or city in the state then adds its own sales tax. There\nis also a transit tax that some counties add to their sales tax. As of 2018, the NYS sales tax rate is\nbetween 7% and 8.875% across the state.\nHOTEL OCCUPANCY TAX: Besides sales tax charges for a hotel room, many local\nmunicipalities charge an occupancy tax. For example, the hotel occupancy tax in NYC over and\nabove the 4% sales tax charged by NYS is 10.375% plus an additional $3.50 per room per night\nfee. (Source: YourMileageMayVary.net article \xe2\x80\x9cUnderstanding Hotel Taxes, Resort Fees &\nDeposits For Incidentals\xe2\x80\x9d by Sharon Kurheg, January 2, 2018.\n(https://yourmileagemayvary.net/2018/01/02/understanding-hotel-prices-hotel-taxes-resort-feesdeposits-for-incidentals/ July 22, 2018.)\nCELLPHONE TAX: According to the New York Post article \xe2\x80\x9cNew Yorkers pay the thirdhighest cellphone taxes in the country\xe2\x80\x9d by Kirstan Conley, October 14, 2016, cellphone taxes in\nNYS when combined with the federal surcharge of 6.64% total 24.68%.\n(https://nypost.com/2016/10/14/new-yorkers-pay-the-third-highest-cell-phone-taxes-in-thecountry/ July 22, 2018)\nCRIMINAL CONVICTIONS AND TRAFFIC VIOLATION SURCHARGES: Surcharges\nare extra fees or taxes imposed over and above the fine. Penal Law \xc2\xa7 60.35 requires, (except for\nconvictions covered by Vehicle and Traffic Law \xc2\xa7 1809 and Parks, Recreation and Historic\n294\n\n\x0cPreservation Law \xc2\xa7 27.12) in addition to any sentence required or permitted by law the following\nsurcharges:\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\n$300.00 for a felony conviction;\n$175.00 for a misdemeanor conviction;\n$95.00 for a conviction of a violation.\n\nAdditionally, Section 60.35 also requires a crime victim assistance fee of $25.00 on a person\nconvicted of a felony, misdemeanor, or violation. Traffic violation surcharges range from $30 to\n$520 depending on the traffic violation conviction. Surcharges are not the only fees that are\nimposed by traffic courts and the DMV. For example, there is a driver responsibility assessment\nfee that is imposed on drivers:\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nconvicted of an alcohol or drugged driving-related traffic offense while driving a motor\nvehicle, boat, or snowmobile in NYS;\nrefuse to take a chemical test for blood alcohol content in NYS;\nreceived six or more points on their NYS driver record within an 18-month period for\nconvictions of traffic offenses committed in New York, Quebec, or Ontario.\n\nThe driver responsibility assessment fee is imposed whether the driver\xe2\x80\x99s license is issued by New\nYork State, another jurisdiction, or if the driver does not have a driver license. The fee ranges from\n$300 to $750, and is payable in equal installments over a three-year period.\nPROPERTY TAXES: School districts, municipalities, counties, and special districts use property\ntaxes to raise the necessary revenue to fund their respective financial responsibilities. Property\ntaxes are calculated by multiplying a property\'s taxable assessment (the assessment minus any\nexemptions) by the tax rates for school districts, municipalities, counties, and special districts. Tax\nowed = taxable assessment x tax rate.\nTax rates are calculated by the local jurisdictions. The steps involved in determining tax rates are\nas follows:\n\xe2\x80\xa2 Taxing jurisdiction (school district, municipality, county, special district) develops and\nadopts a budget.\n\xe2\x80\xa2 Taxing jurisdiction determines revenue from all sources other than the property tax (state\naid, sales tax revenue, user fees, etc.).\n\xe2\x80\xa2 Revenues are subtracted from the budget and the remainder becomes the tax levy. The tax\nlevy is the amount of the tax levy that is raised through the property tax.\nTax levy = budget \xe2\x80\x93 revenues.\n\xe2\x80\xa2 To determine the tax rate, the taxing jurisdiction divides the tax levy by the total taxable\nassessed value of all property in the jurisdiction.\n\xe2\x80\xa2 Because tax rates are generally expressed as "per $1,000 of taxable assessed value," the\nproduct is multiplied by 1,000.\nTax rate per thousand (tax levy \xc3\xb7 total of all taxable assessments in jurisdiction) x 1,000\n295\n\n\x0cFor example:\nTown A\'s tax levy = $2,000,000\nTown\'s total taxable assessed value = $40,000,000\nTax rate = $50 per $1,000 of taxable assessed value\nTax bill for property with a taxable assessment of $150,000 = $7,500\n(Source: NYS Department of Taxation and Finance, \xe2\x80\x9cHow property taxes are calculated\xe2\x80\x9d\nhttps://www.tax.ny.gov/pit/property/learn/proptaxcalc.htm July 22, 2018)\nThe following is from the NYS\xe2\x80\x99s An Electronic Town Hall website, Cap NY Property Taxes-A\nCitizens Guide (https://reforminggovernment.ny.gov/reforminggovernment/propertytaxmap/ July\n22, 2018)\nHow High is Your Community\xe2\x80\x99s Property Taxes?\nNew York property taxes are out of control. The median U.S. property tax paid is\n$1,917 and in New York it is $3,755\xe2\x80\x9496 percent higher than the national median.\nMoreover, New York has the highest local taxes in America as a percentage of\npersonal income\xe2\x80\x9479 percent above the national average.\n\nReferences:\nBerger, R. (2018, March 07). The New 2018 Federal Income Tax Brackets & Rates. Retrieved\nJuly 27, 2018, from https://www.forbes.com/sites/robertberger/2017/12/17/the-new-2018federal-income-tax-brackets-rates/#bdbfe0f292a3\nDepartment of Taxation and Finance. (n.d.). Retrieved July 27, 2018, from\nhttps://www.tax.ny.gov/pit/default.htm\nEl-Sibaie, A. (2018, July 25). 2018 Tax Brackets | Center for Federal Tax Policy. Retrieved July\n27, 2018, from https://taxfoundation.org/2018-tax-brackets/\nForms & Instructions. (n.d.). Retrieved July 27, 2018, from https://www.irs.gov/formsinstructions\nPogue, D. L., Clifford, E., & Schwartz, A. L. (2009). Understanding New York Law,\n2013-14. Upstate Legal Publishers\nSteps to Take Now to Get a Jump on Next Year\'s Taxes. (n.d.). Retrieved July 27, 2018, from\nhttps://www.irs.gov/individuals/steps-to-take-now-to-get-a-jump-on-next-years-taxes\nSteps to Take Now to Get a Jump on Next Year\'s Taxes. (2018, May 22). Retrieved July 27,\n2018, from https://www.irs.gov/individuals/steps-to-take-now-to-get-a-jump-on-next-years-taxes\nTax Reform. (n.d.). Retrieved July 27, 2018, from https://www.irs.gov/tax-reform\n296\n\n\x0cCHAPTER 12\nREAL ESTATE TRANSFERS\nINTRODUCTION\nFor most people, the purchase of their home is the largest investment they will make in their\nlifetime. This chapter will discuss, in general terms, the usual steps in purchasing a home. The\nprocess of purchasing residential real estate can be very local in nature. How attorneys, real estate\nagents, title companies, and lenders work together can vary across the state and from city to city.\nHowever, while the process may be slightly different in NYC versus Buffalo, the legal concerns\nand requirements are the same.\nDEFINTIONS AND TERMS:\nIt is helpful to understand the language and terminology used in real estate transfers. The\nfollowing are common terms and language, in alphabetical order, used in real estate transfers.\nAbstract of Title\nThe Abstract of Title is a summary of all the previous and current owners of a property. It may go\nback as far as the original owner to the present owner. It is a history of the development and\nsubdivision of your property from the deeds, mortgages, and other documents filed in the County\nClerk\'s Office where the property is located. An up-to-date abstract is almost always provided by\na seller to a buyer at the seller\xe2\x80\x99s expense. Abstracts are updated by abstract companies that certify\nthe accuracy of the information contained in the abstract. A buyer will use the abstract to help them\ndetermine whether the seller has good and clean title to their property. Most attorneys and lenders\nrequire abstracts to go back between forty to fifty years of a property\xe2\x80\x99s title history.\nCondominium\nA condominium or condo is a building, or group of buildings, where units are individually owned\nrather than by a landlord. The individual owners of the units will share certain parts of the property\nand expenses of maintenance. These individual owners will pay a fee to an association that all\nowners participate in to manage and pay for agreed upon maintenance and management of the\ncondominiums. Condos often resemble an apartment building.\nContingency\nMost purchase offers will have contingencies associated with the contract. For example, a buyer\nmay have a contingency that they will purchase the property, but only if they can borrow the\nnecessary funds for a certain interest rate. A seller may have a contingency that the closing date\nfor their sale aligns with the purchase of the new home they are purchasing.\nCounter-Offer\nWhen a seller receives a purchase offer, they may want to accept the offer but under different terms\nlike a higher purchase price. They will then make a counter-offer to the buyer. This process of\ncounter-offers may go back and forth between a buyer and seller several times before a final\nagreement is reached.\nDeed\n297\n\n\x0cA deed is the legal document that transfers legal title of real estate from one person or entity to\nanother.\nDeposit\nWhen a buyer and seller agree to a purchase offer, the seller will usually require the buyer to place\na deposit with the real estate broker listing the property to show good faith in the purchase. The\ndeposit is usually non-refundable if the buyer breaches the purchase offer contract. This deposit\nwill be used toward the down payment on the property.\nDown Payment\nA down payment is the amount of funds the buyer is paying in conjunction with his/her loan. The\namount of down payment a buyer must make is determined by the lender, which is usually\ndetermined by the credit of the buyer. Better credit usually means a lower down payment.\nEasements\nAn easement gives a property right to someone who does not own the property. Examples are with\nutility companies and their right to enter a property they do not own to repair and maintain the\nutility services. Another example is when a property is landlocked, so the owners cannot reach the\nstreet or sidewalks without crossing another property. An easement would give them the right to\ndo so.\nEscrow\nTypically, a lender will require a buyer/mortgagor to set up an escrow through the lender. The\nescrow will have funds paid by a mortgagor in advance and placed in the escrow account to pay\nthe real estate taxes and homeowner\xe2\x80\x99s property insurance associated with the property.\nFixtures\nFixtures are personal property items that are attached to a property. Fixtures can become part of\nthe real estate. For example, a chandelier attached to the ceiling of a home is a fixture and upon\nsale and purchase is expected to remain with the property. However, a room air conditioner that is\nplaced in and out of a window is not a fixture.\nForeclosure\nA foreclosure is a legal action by the mortgagee to take legal possession and title of real estate\nowned by a mortgagor when the mortgagor breaches the note and mortgage.\nHouse Inspection\nA buyer often will hire a third party to inspect the property as a contingency of the purchase. The\nproperty inspector will look for defects or damage to property. Radon, mold, pests, water damage,\nand leaking roofs are often things that inspectors will look and test for.\nHomeowner\xe2\x80\x99s Property Insurance\nHomeowner\xe2\x80\x99s property insurance is a type of insurance that the owner of real estate purchases to\nprotect them in the event the property is damaged by fire or other unforeseen events. It often\nprotects them from theft of their personal property and from lawsuits from third parties against\nthem based on their property ownership. Lenders almost always will require mortgagors to\n298\n\n\x0cpurchase property insurance and have the lender listed on the insurance, so the lender\xe2\x80\x99s collateral\nis protected. This is an expense of the buyer/owner of the property and has nothing to do with title\ninsurance.\nInstrument Survey\nAn instrument survey is a map drafted by a licensed surveyor showing lot lines, sewer easements,\nfences, and the location of any structures such as houses, garages, sheds, and swimming pools\nlocated on a particular piece of property. A survey is almost always provided by a seller to a buyer\nat the seller\xe2\x80\x99s expense. It is used by a buyer to help determine if the seller has good and clean title\nof their property.\nListing a Home\nA real estate broker \xe2\x80\x9clists\xe2\x80\x9d your house when you put your house up for sale and you sign a written\nsales agreement with that broker agreeing to have them represent you in said sale.\nMortgagee\nA mortgagee is the lender that loans the money to a mortgagor.\nMortgagor\nA mortgagor is the buyer who borrows the money and signs a mortgage with a lender.\nMultiple Family\nA multiple family is a home built for two or more people or families to live in. A two-family home\nis often called a double.\nMultiple Listing Service or MLS\nThe MLS is an internet tool of the National Association of REALTORS\xc2\xae that assists listing\nbrokers find cooperative brokers working with buyers to help sell their clients\' homes.\nNote and Mortgage\nTypically, because of the amount of money required to purchase real estate, a buyer will borrow\nthe necessary funds to do so from a lender. The lender can be a bank, credit union, or individual\nwho lends the money to a buyer. The note sets out the terms of the contract between the lender and\nthe buyer. It will state how much interest the buyer will pay for the loan, along with the timeframe\nand method of repayment. The mortgage is the contract between the lender and the buyer that uses\nthe real estate as collateral for the loan. It sets out the responsibilities of the buyer regarding\ninsurance coverage, paying of taxes, and of the note. It also sets out what will happen if the buyer\nbreaches the terms of the note and mortgage, which will lead to foreclosure.\nReal Estate\nReal estate is land that includes any buildings or structures on said land. It is often called real\nproperty.\n\nReal Estate Commission\n299\n\n\x0cAlmost all real estate brokers and agents work on commission. The commission for the sale and\npurchase of real residential real estate is most typically paid by the seller. The typical commission\nfor residential real estate is in the range of four to six percent of the sale price. The commission is\npaid to the listing broker, who then shares the commission with the other brokers and agents\ninvolved in the transaction.\nREALTOR\xc2\xae, Broker, Agent, Salesperson\nA real estate agent is anyone who earns a real estate license. There is a test that real estate agents\nmust pass to get licensed. A real estate agent helps clients rent, buy, or sell real estate. A real estate\nagent is an independent contractor who must work under the umbrella of a real estate broker. A\nreal estate broker is an agent who has a higher license than an agent by passing an additional test.\nBrokers can work alone or hire agents to work for them. Real estate brokers can start their own\ncompanies or own a franchise with a real estate company like Century 21 or Coldwell Banker.\nThere are a number of different local and national real estate companies. A REALTOR\xc2\xae is a real\nestate broker or agent who is a member of the National Association of REALTORS\xc2\xae. A real estate\nsalesperson is another name for a real estate agent.\nPurchase Offer\nAll contracts for the sale and purchase of real estate must be in writing. A purchase offer is a\nwritten contract between a buyer and seller for the purchase of real estate. Putting real estate up\nfor sale is not an offer. It is an invitation to accept offers for purchase. A seller is not under any\nobligation to accept an offer for purchase. The buyer is the one making the offer that a seller must\naccept for a valid real estate purchase offer.\nPurchaser\nA purchaser and buyer are one in the same.\nProperty Description\nA deed will set out the property description. It is a written version of the lot lines of the property.\nThe property description in a deed and what an instrument survey shows as lot lines should match\nexactly.\nProperty Lots\nReal estate is divided into various lots that people or entities own. Lot lines are also referred to as\nproperty lines.\nTitle\nIf you have title to real estate, it means you own it. When a buyer purchases property, their attorney\nshould make sure they are receiving good and clean title. There should be no unknown problems\nwith the title. These title problems are sometimes referred to as a cloud on title. An example of a\ncloud on title would be an unresolved foreclosure action or a judgment filed against an owner of\nreal property.\n\nTitle Insurance\n300\n\n\x0cTitle insurance is purchased by a buyer to protect them against future title problems that are missed\nat a closing. A title company is guaranteeing the title to your land is good and clean and will\nreimburse you if there is a future title problem. Title insurance is typically an expense of a buyer.\nLenders almost always require a buyer to purchase title insurance in an amount to cover the note\nand mortgage. This protects the lender\xe2\x80\x99s collateral and interest in the property. Buyers can also\npurchase their own title insurance. This is not the same as property insurance.\nReal Estate Attorneys\nMost sellers, buyers, and lenders in NYS real estate transfers have their own attorneys representing\nthem. The buyer and seller are typically responsible for the cost of their own attorneys. The buyer\ntypically pays for the cost of the lender\xe2\x80\x99s attorney. In most instances, the buyer\xe2\x80\x99s and seller\xe2\x80\x99s\nattorneys will review and approve the purchase offer between the parties.\nThe seller\xe2\x80\x99s attorney is responsible for providing to the buyer\xe2\x80\x99s attorney all the legal documents\nthat show the seller has good and clean title. The buyer\xe2\x80\x99s attorney is responsible for reviewing\nthese documents. If the buyer finds problems with the title, the buyer\xe2\x80\x99s attorney will notify the\nseller\xe2\x80\x99s attorney, who is then responsible for trying to resolve the title issues. The lender\xe2\x80\x99s attorney\nis responsible for providing the legal documents required by the lender to protect their interest,\nlike the note and mortgage. They will also be concerned with the title of the property and review\nall the title documents provided by the seller\xe2\x80\x99s attorney to determine whether they are satisfied that\nthe title is good and clean.\nReal Estate Closing\nA real estate closing is the final step in a real estate transaction. This is where signed deeds, notes,\nmortgages, and other legal documents, along with the funds for purchase are exchanged between\nthe parties.\nReal Estate Taxes\nReal estate taxes are a type of tax used to fund schools and essential services provided by your\nlocal governments.\nRecording Fees\nMost legal documents in a real estate transfer are recorded in the local county clerk\xe2\x80\x99s office. The\ncounty clerks charge various fees for recording these documents. Some recording fees are paid by\nthe seller, and some by the buyer, as determined by the purchase offer contract.\nRestrictive Covenants\nProperties sometimes have restrictive covenants placed on them that do not allow current and\nfuture owners from doing certain things with the property. Restrictive covenants are enforceable\nas long as they do not violate the law.\nGeneral Obligations Law (GOB) \xc2\xa7 5-331 states, \xe2\x80\x9cAny promise, covenant or restriction in a\ncontract, mortgage, lease, deed or conveyance or in any other agreement affecting real property,\nheretofore or hereafter made or entered into, which limits, restrains, prohibits or otherwise\nprovides against the sale, grant, gift, transfer, assignment, conveyance, ownership, lease, rental,\nuse or occupancy of real property to or by any person because of race, creed, color, national origin,\n301\n\n\x0cor ancestry, is hereby declared to be void as against public policy, wholly unenforceable, and shall\nnot constitute a defense in any action, suit or proceeding.\xe2\x80\x9d\nHowever, a restrictive covenant that would prohibit a property from having a clothes line outside\nor from being painted a certain color would be enforceable.\nSingle Family\nA single family is a home built for one person or family to live in.\nTownhouse\nTownhouses are very much like condominiums, except they are individual houses attached to\neach other.\nZoning\nZoning is the government\xe2\x80\x99s way of controlling how a property can be used by the owner. The\ngovernment has an interest in making certain neighborhoods residential while having other parts\nof its territory zoned for commercial and industrial use.\nMUST I USE A REAL ESTATE AGENT TO SELL OR PURCHASE A HOME?\nThere is no requirement to use a real estate agent in the sale or purchase of real estate. Many sellers\nwill put their real estate on the market for sale without the help of a real estate broker or agent.\nHowever, most people do use the services of real estate brokers and agents.\nTHE TYPICAL STEPS IN SELLING A HOME USING A REAL ESTATE BROKER\n\xe2\x80\xa2 Sign a written contract with your broker to list the property on the MLS for an agreed\nupon price.\n\xe2\x80\xa2 Place a sign on the property indicating it is for sale with the broker\xe2\x80\x99s contact information.\n\xe2\x80\xa2 Hold open houses so potential buyers can walk through and see the property.\n\xe2\x80\xa2 Hire an attorney to represent you and prepare the closing documents.\n\xe2\x80\xa2 Review, counter, and accept a purchase offer.\n\xe2\x80\xa2 Through their attorney, provide all the title documents like an updated abstract and\ninstrument survey to the buyer\xe2\x80\x99s attorney, along with a proposed deed.\n\xe2\x80\xa2 Make arrangements with their current lender, if there is one, to pay off their loan and get\na mortgage release on the property.\n\xe2\x80\xa2 Make arrangements to move out of the property pursuant to the date set in the purchase\ncontract. Sometimes, sellers remain in the home after the closing and pay rent to the\nbuyer until they can move out.\n\xe2\x80\xa2 Sign all the legal documents including the deed to the property.\nTHE TYPICAL STEPS IN BUYING A HOME WITH A REALS ESTATE BROKER\n\xe2\x80\xa2 Work with a broker who will represent you in the purchase of your home.\n\xe2\x80\xa2 Decide what type home, where you wish to live in, and how much you want to\nspend in purchasing your home.\n\xe2\x80\xa2 Get pre-qualified for a mortgage.\n\xe2\x80\xa2 Review prospective homes on the internet and in person with your broker.\n\xe2\x80\xa2 Make a purchase offer with the help of your real estate broker.\n302\n\n\x0c\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nHire an attorney to represent you in the purchase and review all the title and closing\ndocuments.\nHire an inspector to inspect the property.\nAfter the purchase offer is signed and approved by your attorney, work with your\nlender to obtain your mortgage.\nPurchase homeowners insurance.\nMake arrangements to move into the property pursuant to the purchase offer.\nAttend the closing and sign all legal and closing documents.\n\nTYPICAL SELLER\xe2\x80\x99S CLOSING COSTS\n\xe2\x80\xa2 Updating the Abstract of Title\n\xe2\x80\xa2 Broker\xe2\x80\x99s commission\n\xe2\x80\xa2 Instrument Survey\n\xe2\x80\xa2 Transfer Taxes\n\xe2\x80\xa2 Seller\xe2\x80\x99s mortgage payoff\n\xe2\x80\xa2 Attorney Fees\nTYPICAL BUYER\xe2\x80\x99S CLOSING COSTS\n\xe2\x80\xa2 Bank Fees\n\xe2\x80\xa2 Down Payment\n\xe2\x80\xa2 Personal Attorney Fees\n\xe2\x80\xa2 Lender\xe2\x80\x99s Attorney Fees\n\xe2\x80\xa2 Escrow\n\xe2\x80\xa2 Mortgage Tax\n\xe2\x80\xa2 Recording Fees\nQUALIFYING FOR MORTGAGE\nAs with all loans, lenders for the purchase of real estate are looking for borrowers that they\nbelieve are good risks. Most lenders look for the following in making this determination:\n\xe2\x80\xa2 The borrower\xe2\x80\x99s credit history\n\xe2\x80\xa2 The borrower\xe2\x80\x99s income\n\xe2\x80\xa2 The borrower\xe2\x80\x99s length of employment\n\xe2\x80\xa2 The value of the property\nCLOSING DOCUMENTS FILED WITH AT THE COUNTY CLERKS OFFICE\nReal estate transfer documents are part of the public record. All real estate transfer documents\ncan be found at the county clerk\xe2\x80\x99s office where the property is located. Deeds, mortgages, and\nother documents are recorded so the public has notice as to ownership and liens that are placed\non real estate.\nDeeds, mortgages, and other documents relating to real property are recorded (filed) in the\ncounty clerk\xe2\x80\x99s office in the county where the real estate is located. This is done so\npotential buyers can research the tile and make sure the seller really owns the property and\nthat all mortgages have been paid off or otherwise provided for prior to closing. Attorneys\n\n303\n\n\x0cand title companies generally assist you with this task. This is why an abstract of title is\nprepared.\nDIFFERENT WAYS TO RECEIVE TITLE ON A DEED\n1) Sole Ownership: If a buyer is taking sole ownership of a property, all they need is the\nsignature on a deed from the seller(s). If they die while in ownership of the property, it will\nbecome part of their estate and be passed on pursuant to their will or by law if they have\nno will.\n2) Tenants by the Entirety: Spouses can take title as tenants by the entirety. This means that\nif one of the spouses dies while they are in ownership of the property, the living spouse has\nthe right of survivorship. The deceased spouse\xe2\x80\x99s property rights in said property\nautomatically pass to the surviving spouse regardless of what the deceased spouse\xe2\x80\x99s will\ndictates. If, during their lifetimes, both spouses wish to sell the property, both of them must\nsign the deed to convey title to a third party. This is because each spouse owns 100% of\nthe property. NY EPTL \xc2\xa7 6-2.2(b) provides that, "a disposition of real property to a husband\nand wife creates in them a tenancy by the entirety, unless expressly declared to be a joint\ntenancy or a tenancy in common". This means that if spouses purchase property while they\nare married, they automatically do so as tenants by the entirety, even if the deed does not\nstate so.\n3) Joint Tenants with Right of Survivorship: This form of title is exactly the same as tenants\nby the entirety except the two owners are not married. Both owners have equal rights and\nownership of the property while alive. Upon the death of one of the joint tenants, all the\nproperty rights and title of the property will vest in the surviving joint tenant. If, during\ntheir lifetimes, both owners wish to sell the property, both of them must sign the deed to\nconvey title to a third party. This is because each owner owns 100% of the property.\n4) Tenants in Common: When two or more owners take ownership of a property, they can\ndo so as tenants in common and set forth in the deed. The ownership of the property is\ndivided by percentages as agreed upon by the owners. There is no right of survivorship.\nUpon an owner\xe2\x80\x99s death, that owner\xe2\x80\x99s share in the property will pass on as dictated by the\nowner\xe2\x80\x99s estate, with or without a will. Each owner can sell their share of the property\nwithout the permission or signing of a deed by other owner(s). If the deed is silent as to\nform of ownership and just lists the names of the owners, then it is presumed that the parties\nown the property as tenants in common.\n5) Life Estate: A person can transfer property to another while retaining right of possession\nof the said property while they are still alive. This is called a life estate. Life estates are\ncommon between family members where elderly parents wish to convey their real property\nto their children while still retaining the right to live in the home until they die.\n\n304\n\n\x0cChapter 12 Appendix A: Instrument Survey Map\nABOVE\nGROUND\nPOOL\n\nCHAIN LINK\nFENCE 3 FEET\nEAST OF\nPROPERTY LINE\n\nPROPERTY\nLINE\n\nReferences:\nNew York Consolidated Laws, General Obligations Law - GOB \xc2\xa7 5-331. (n.d.). Retrieved July\n27, 2018, from https://codes.findlaw.com/ny/general-obligations-law/gob-sect-5-331.html\nPogue, D. L., Clifford, E., & Schwartz, A. L. (2009). Understanding New York Law, 2013-14.\nUpstate Legal Publishers\nReal Estate Topics. (n.d.). Retrieved July 27, 2018, from https://www.nar.realtor/topics\n\n305\n\n\x0cCHAPTER 13\nRESIDENTIAL LEASE TRANSACTIONS\nINTRODUCTION\nThis chapter will explain the basics in residential lease transactions. It should be noted that this\nchapter will discuss the law as it pertains generally across the New York State. The law regarding\nrent control, rent stabilization, and boarding house leases will not be discussed in much detail.\n\nRESIDENTIAL LEASES\nLeases are contracts between landlords and tenants, (also referred to as lessors and lessees) which\ncan be in writing or verbal, allowing the tenant to take possession of the landlord\xe2\x80\x99s property for a\nspecific term and for a specified rent. All leases can be in writing, but do not have to be. However,\nall leases that are for a term of one year or more must be in writing. An oral lease for more than\none year cannot be legally enforced. (General Obligations Law \xc2\xa7 5-701) Leases that are that not in\nwriting are called month-to-month leases.\nWritten leases that are for a term of one year or more can become month-to-month leases. For\nexample, take a tenant who has a written lease for a term of one year. After one year, the written\nlease now expires, but the landlord allows the tenant to remain in the rental unit without signing a\nlease renewal or new lease. All the terms of the written lease will remain intact except that the\nlease is now a month-to-month lease, meaning the term is one month. If the tenant wants to move\nout, or the landlord wants to raise the rent, the law regarding month-to-month leases applies.\nThe law regarding month-to-month leases allows tenants to terminate their lease with one month\xe2\x80\x99s\nnotice. (30 days in NYC.) However, the one month\xe2\x80\x99s notice must be given before the first of the\nmonth of termination. For example, if a tenant wants to move out at the end of June, the one-month\nnotice would have to be given to the landlord no later than May 31st. If the notice was given to the\nlandlord on June 1st, the tenant would be responsible for both the June and July rent. The lease\nwould not terminate until the end of July.\nThe law for landlords of month-to-month leases is very much the same. If a landlord wants to\nterminate the tenancy of a tenant, the same rules regarding one month\xe2\x80\x99s notice apply. The same\none month\xe2\x80\x99s notice applies if the landlord wants to raise the rent.\nTerminating a month-to-month lease is much easier as no cause needs to be established, only proof\nof proper notice. Not so if a tenant or landlord attempts to terminate a longer term lease before the\nend of the term. In those situations, cause must be alleged and proven.\nPlain English: The law in New York requires that all leases must be in plain English. The language\nin residential leases must be clear, simple, and understandable. (General Obligations Law \xc2\xa7 5-702;\nNY CPLR \xc2\xa7 4544)\n\n306\n\n\x0cAt a minimum, a lease should identify the premises to be leased, specify the names and addresses\nof the parties, the amount and due dates of the rent, the term or duration of the lease, conditions of\noccupancy, and the rights and obligations of both parties.\nRent: As long as an apartment is not subject to Rent Control or Rent Stabilization, a landlord can\ncharge any amount of rent agreed upon by the parties. Rent is usually paid monthly and usually is\ndue the first of the month. Some leases give a grace period that the rent can be paid before a late\nfee applies.\nRent Control: Rent control limits the rent a landlord may charge for an apartment. It also restricts\nthe right of the landlord to evict tenants. Rent control is still in effect in New York City and parts\nof Albany, Erie, Nassau, Rensselaer, Schenectady, and Westchester counties.\nRent Stabilization: Rent stabilization generally covers buildings built after 1947 and before 1974,\nalong with some buildings built with tax incentives. Rent stabilization limits the ability of landlords\nto raise rent. It also entitles tenants to have their leases renewed, and tenants may not be evicted\nexcept on legal grounds. You will find rent stabilization laws in NYC and in certain localities\nlocated in Nassau, Westchester, and Rockland counties.\nSecurity Deposit: This is money paid by a tenant that is held in escrow by a landlord as collateral\nin the event the tenant damages the property they are leasing, or fails to pay all the rent that is due.\nThe amount of a security deposit is whatever the parties agree to. Generally, it is an amount that\nequals between one and two months\xe2\x80\x99 rent. Non-refundable security deposits are unlawful.\nLandlords of buildings with six or more apartments must put all security deposits in a New York\nbank accounts earning interest at the prevailing rate. Each tenant must be informed in writing of\nthe bank\xe2\x80\x99s name and address and the amount of the deposit. Landlords are entitled to collect annual\nadministrative expenses of one percent of the deposit. All other interest earned on the deposits\nbelongs to the tenants. (General Obligations Law \xc2\xa7 7-103)\nNew York State law requires that security deposits must be returned in a reasonable amount of\ntime. There is no specific time frame set by statute. Generally speaking, courts have interpreted 30\ndays to be a reasonable amount of time.\nA landlord can use a security deposit to make repairs caused by the tenant. A landlord can also use\nthe security deposit for any rent or fees that are unpaid. If a landlord does keep any amount of a\nsecurity deposit, they must inform the tenant in writing on why and how they calculated their\nexpenditures.\nWhile a landlord can deduct from the deposit actual cost of damages including labor costs, they\ncannot deduct for repairs that are considered normal wear and tear. However, if a tenant leaves the\napartment unclean, the costs of cleaning can be deducted from the security deposit.\nRenewal Clauses: Leases may contain automatic renewal clauses. However, to be enforceable,\nthe landlord must give the tenant advance notice of the existence of this clause between 15 and 30\n\n307\n\n\x0cdays before the tenant is required to notify the landlord of an intention not to renew the lease.\n(General Obligations Law \xc2\xa7 5-905)\nSenior Citizen Rights: Senior citizens have the right to terminate their leases with thirty days\xe2\x80\x99\nnotice to their landlord if they are at least 62-year- old, and accepted into: 1) an adult care facility;\n2) a residential health care facility; 3) subsidized low income housing; 4) other senior housing; or\n5) move into the residence of a relative or family member if certified by a physician as no longer\nable to live independently. (Real Property Law \xc2\xa7 227-a)\nActive Duty Military: Tenants that are on active duty with the military and transferred out of the\narea, may terminate their lease with a thirty-day notice corresponding to the rent due date. (NY\nMilitary Law \xc2\xa7 310)\nVictims of Domestic Violence: Tenants that are victims of domestic violence and are shielded by\na court order of protection are permitted, with ten days\xe2\x80\x99 notice to their landlord, to seek a court\norder terminating their lease. If the lease is terminated by court order, the tenant will be released\nfrom any further rental payments. (Real Property Law \xc2\xa7 227-c)\nSharing Occupancy: A landlord cannot restrict the occupancy of an apartment strictly to the\nnamed tenant or tenants in a lease. Tenants may share the rental unit with immediate family, one\nadditional occupant, and the occupant\xe2\x80\x99s dependent children, provided that the tenant or the tenant\xe2\x80\x99s\nspouse occupies the premises as their primary residence.\nWhen a lease names more than one tenant, and one of the tenants named in the lease moves out,\nthat tenant may be replaced with another occupant and the dependent children of the occupant.\nTenants have the obligation to give the landlord notice of the additional occupants within 30 days.\nIf the tenant moves out, the occupants have no right of occupancy.\nLandlords may limit the total number of people living in rental based on state and local occupancy\nlaws.\nHeat Bills: The law in New York requires that a landlord or heat supplier must furnish, upon\nrequest by a prospective tenant, the cost of heating and cooling for the past two years. (Energy\nLaw \xc2\xa7 17-103)\nProviding Heat: A landlord must provide heating, plumbing, and electrical apparatus in good and\nsafe working order, even if the tenant pays the utility bills. State law requires that landlords who\nsupply heat to tenants must do so between October 1 and May 31. Multiple Dwelling Law \xc2\xa7 79\nlinks the outside temperature to the required indoor temperature as follows:\nTime\n6 a.m. to 10 p.m.\n10 p.m. to 6 a.m.\n\nOutside\n55 degrees or less\n40 degrees or less\n\nInside\n68 degrees\n55 degrees\n\nMunicipalities may require higher, but not lower, indoor temperatures.\n308\n\n\x0cHot Water: Landlords must provide both hot and cold water. (Multiple Dwelling Law \xc2\xa7 75) Hot\nwater should have a constant temperature of 120 degrees or greater at the tap.\nSafety: Landlords are required to follow all Certificate of Occupancy requirements. They must\ninstall and maintain the proper number of smoke detectors and carbon monoxide detectors. They\nmust abide by all state and local lead paint laws. The apartment must be secured with functioning\nwindow and door locks. Some buildings require functioning intercom systems and access to fire\nescapes. Landlords are required to take reasonable measures to keep their property safe from crime.\nAssignment of Lease: \xe2\x80\x9cUnless a greater right to assign is conferred by the lease, a tenant renting\na residence may not assign his lease without the written consent of the owner, which consent may\nbe unconditionally withheld without cause provided that the owner shall release the tenant from\nthe lease upon request of the tenant upon thirty days\xe2\x80\x99 notice if the owner unreasonably withholds\nconsent which release shall be the sole remedy of the tenant. If the owner reasonably withholds\nconsent, there shall be no assignment and the tenant shall not be released from the lease.\xe2\x80\x9d (Real\nProperty Law \xc2\xa7 226-b(1)).\nSublet: \xe2\x80\x9cA tenant renting a residence pursuant to an existing lease in a dwelling having four or\nmore residential units shall have the right to sublease his premises subject to the written consent\nof the landlord in advance of the subletting. Such consent shall not be unreasonably withheld.\xe2\x80\x9d\n(Real Property Law \xc2\xa7 226-b(2)(a))\n\xe2\x80\x9cIf the landlord consents, the premises may be sublet in accordance with the request, but the tenant\nthereunder, shall nevertheless remain liable for the performance of tenant\'s obligations under said\nlease. If the landlord reasonably withholds consent, there shall be no subletting and the tenant\nshall not be released from the lease. If the landlord unreasonably withholds consent, the tenant\nmay sublet in accordance with the request and may recover the costs of the proceeding and\nattorney\xe2\x80\x99s fees if it is found that the owner acted in bad faith by withholding consent.\xe2\x80\x9d\n(Real Property Law \xc2\xa7 226-b(2)(c))\nPets: Whether a landlord will allow a tenant to have pets is a lease term that is negotiated between\nthe parties. Landlord are allowed to charge more rent and fees, including higher security deposits\nwith tenants that want to have pets.\nSnow Removal and Lawn Cutting: Tenants of single family and two-family dwellings are\nresponsible for cutting the grass and shoveling the snow unless the landlord and tenant(s) agree\notherwise. Some local laws even require that the first-floor tenant is responsible for snow removal\non the public sidewalk in front of the rented premises.\nWarranty of Habitability: \xe2\x80\x9cIn every written or oral lease or rental agreement for residential\npremises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased\nor rented and all areas used in connection therewith in common with other tenants or residents are\nfit for human habitation and for the uses reasonably intended by the parties and that the occupants\nof such premises shall not be subjected to any conditions which would be dangerous, hazardous\nor detrimental to their life, health or safety. When any such condition has been caused by the\n\n309\n\n\x0cmisconduct of the tenant or lessee or persons under his direction or control, it shall not constitute\na breach of such covenants and warranties.\xe2\x80\x9d (Real Property Law \xc2\xa7 235-b(1))\n\xe2\x80\x9cAny agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in\nthis section shall be void as contrary to public policy.\xe2\x80\x9d (Real Property Law \xc2\xa7 235-b(2))\nThe warrant of habitability does not have to be stated in the lease. It applies to all residential leases\nby law.\nTenant Repair and Deduct Law: When a tenant has repeatedly requested repairs in writing over\nan extended period of time, the tenant may, under common law, make the repairs and deduct the\ncosts of said repairs from the rent. There is no written law that allows this remedy in NYS.\nTherefore, there is no guaranteed protection given a tenant who decides to take the course of action.\nAppliances: Landlords are not required to provide appliances in an apartment. However, if they\ndo not provide a stove or refrigerator with the apartment, they must notify the tenant before\nfinalizing the lease. If the landlord does supply appliances, they must keep them in good working\norder.\nPrivacy Rights of a Tenant: Tenants are entitled to what is referred to as quiet enjoyment of their\nleased premises. This doctrine limits a landlord\xe2\x80\x99s access to a tenant\xe2\x80\x99s apartment so as to protect\nthe privacy of a tenant. If a landlord wants to enter the tenant\xe2\x80\x99s apartment, they must give\nreasonable notice (24 hours) before doing so. However, a landlord may enter without notice for\nemergencies. Fire, gas or water leaks, and burglary are considered emergencies. A lease often\ndetails how the tenant\xe2\x80\x99s right to privacy will be protected.\nUnlawful Lease Terms: Certain terms in a lease are void by law. A term that exempt the landlord\nfrom liability for injuries to persons or property caused by the landlord\xe2\x80\x99s negligence, or that of the\nlandlord\xe2\x80\x99s employees or agents would be void pursuant to General Obligations Law \xc2\xa7 5-321.\nWaiving the tenant\xe2\x80\x99s right to a jury trial in any lawsuit brought by either of the parties against the\nother for personal injury or property damage would be void pursuant to Real Property Law \xc2\xa7 259c. Requiring tenants to pledge their household furniture as security for rent is void pursuant to Real\nProperty Law \xc2\xa7 231.\nRenters Insurance: Tenants often purchase renter\xe2\x80\x99s insurance to cover their risk of loss if their\npersonal property in their apartment is damaged. Landlord\xe2\x80\x99s carry insurance that covers the risks\nto the landlord\xe2\x80\x99s property, not to damage or losses incurred to a tenant\xe2\x80\x99s personal property in a\nrental unit. When damage results to a tenant\xe2\x80\x99s personal property from something like water damage\ndue to a broken water supply line, or burglary, the landlord will not be responsible for said\ndamages. That is when renters insurance would help a tenant recover from their loss. If the landlord\nwere in some way legally responsible, a tenant may be able to sue the landlord for said damages\nbut that is often not easy to prove, can be expensive, and is time consuming.\nEvictions: Evictions are legal proceedings where a landlord is asking a civil court to issue an order\nfor removal of the tenant from an apartment. Typically, when a tenant has not paid the rent (is in\narrears), or violated terms of the lease (like having a pet in an apartment where the lease\n310\n\n\x0cspecifically prohibits such), or is a hold over tenant (when a tenant remains in possession of a\nproperty without the landlords consent after their lease has expired), a landlord must first give\nthree days\xe2\x80\x99 written notice of the violations, then serve a tenant with a Notice of Petition and Petition\nto appear in court for a Summary Proceeding for eviction. The Petition sets out the grounds for\nthe eviction, while the Notice of Petition sets out the date, location of the court, and time of\nappearance for the Summary Proceeding. A Summary Proceeding is an expedited court\nproceeding.\nAt the Summary Proceeding, if a judge finds there that no triable issues exist, there is no hearing.\nThe landlord then obtains an order for eviction and judgment for rent due. If the judge finds there\nis a triable issue of fact (like a warrant of habitability violation claim), then the judge can set a\nhearing date to get testimony from both parties before rendering an order of eviction or dismissing\nthe case.\nLandlords may not use self-help to evict a tenant. A landlord cannot do things like change the\nlocks, remove a tenant\xe2\x80\x99s possessions, or shut off the utilities to force a tenant out. These actions\nare criminal acts under New York State Real Property Law \xc2\xa7 235.\nIf a judge issues a judgment of eviction known as a Warrant of Eviction, the tenant will have 72\nhours to vacate the premises. If the tenant fails to abide by the Warrant of Eviction, only a marshal\nof the court can enforce the Warrant. The landlord would hire the marshal to enforce the Warrant\nand remove the tenant.\nIf the tenant leaves their personal belongings behind in an apartment, whether the tenant is evicted\nor not, unless the tenant has given notice to the landlord that they do not want said personal\nproperty, the landlord must place those items in a secure storage area for 30 days before disposing\nof them. The tenant has the right retrieve said items of personal property within the 30-day period\nof time as long as they pay the landlord for the reasonable cost of the storage. After the 30-day\nperiod expires, the landlord can sell any remaining personal property in storage and apply those\nfunds to any monies owed to the landlord by the tenant.\n\nSELECTING TENANTS\nA person\xe2\x80\x99s ability to pay rent and willingness to preserve an apartment are the two major\nconsiderations of a landlord in selecting a tenant.\nLandlords usually use an application form which requests the following information:\n\xe2\x80\xa2 Name, social security number, and current residence address\n\xe2\x80\xa2 Number and names of people who will occupy rental unit\n\xe2\x80\xa2 Residence and work telephone numbers\n\xe2\x80\xa2 Annual income and source\n\xe2\x80\xa2 Employer\xe2\x80\x99s name, address, and length of time on the job\n\xe2\x80\xa2 Bank accounts \xe2\x80\x93 name of bank and account number(s)\n\xe2\x80\xa2 Past residence addresses over several years\n\xe2\x80\xa2 Motor vehicle make, model, year, and plate numbers\n\xe2\x80\xa2 Credit and character references\n311\n\n\x0c\xe2\x80\xa2\n\xe2\x80\xa2\n\nWhom to contact in the event of an emergency\nWritten permission from the applicant to run a credit report on them\n\nDiscrimination: In selecting a tenant, a landlord is prohibited under New York\xe2\x80\x99s Human Rights\nAct and the federal government\xe2\x80\x99s Fair Housing Amendments Act of 1988 from illegally refusing\nto rent or refuse to renew a lease based on race, color, religion, national origin, age, sex, marital\nstatus, disabilities, sexual orientation, military status, and children. These are what are called under\nthe laws \xe2\x80\x9cprotected categories\xe2\x80\x9d that prohibit discrimination in residential lease transactions.\nHowever, landlords in owner-occupied rental units of four units or less, and in renting a room in a\nhome in which the owner resides, are exempt from both these state and federal discrimination laws.\nSexual Harassment in Housing: Sexual harassment in housing is a form of sex discrimination\nprohibited by the Fair Housing Act and other federal and state laws. There are two main types of\nsexual harassment: (1) quid pro quo sexual harassment; and (2) hostile environment sexual\nharassment.\nQuid pro quo harassment is when a landlord, property manager, or maintenance person requires a\nperson to submit to an unwelcome request to engage in sexual conduct as a condition of obtaining\nor maintaining housing or housing-related services.\nHostile environment harassment is when a landlord, property manager, or maintenance person\nsubjects a person to severe or pervasive unwelcome sexual conduct that interferes with the rental,\nthe availability of a rental, or the terms, conditions, or privileges of housing or housing-related\nservices.\n\n312\n\n\x0cChapter 8 Appendix 1: Sample Lease\nLEASE AGREEMENT made by and between the Tenant, _____________________________,\ncurrently residing at _________________________, and the Landlord, ____________________,\nwith a current mailing address of _____________________________________.\nThe parties hereby agree to the following terms and conditions of this lease agreement:\n1. Apartment Location: __________________________________________, Apt. No.______.\n2. Term of Lease:\n\n___________Months, beginning ___________ and ending ___________.\n\n3. Rent: Monthly: $ _____________________________.\n4. Rent Due Date:\n\nRent will be due the ________ day of the month starting _____________.\n\n5. Late Charge: Tenant will pay a charge of $__________if rent is more than five (5) days late.\n6. Maintenance of the Apartment: The tenant agrees to pay for any damage to the apartment\noccurring during his term only. Tenant may, within ten (10) days of moving in, notify the owner\nin writing of any items which are damaged, broken, or soiled. The tenant will not be held\nresponsible for any damage, breakage, or soil occurring before the tenant moved in. Broken\nglass of windows shall be replaced by tenant. The tenant agrees not to paint or make any\nalterations to the apartment without discussing his plans with the owner. The tenant is\nresponsible for, and shall take care of, the apartment during his occupancy and agrees to keep the\napartment clean.\n7. Security Deposit: A Security Deposit in the amount of $ ___________, which represents onemonth\xe2\x80\x99s rent, is required, and will be held in trust by the owner until termination of tenancy. The\nsecurity deposit is not to be considered as rent for the last month of lease. The Security Deposit\nwill be refunded in full, with interest minus a 1% account maintenance fee within thirty (30)\ndays of termination of this tenancy, less any damages over and above regular wear and tear, and\nless cleaning charges, if any.\n8. Cleaning Charges: Tenant is expected to leave apartment clean at end of tenancy, and to\nplace all unwanted items in boxes, and remove same from the apartment, and place at curb, ready\nfor refuse collector. If the tenant fails to leave the apartment in clean condition, the following\ncleaning charges may be applied against the Security Deposit: Range: $25.00; Refrigerator:\n$25.00; Kitchen (including cabinets), Bathroom (including all fixtures and tile), and all other\nrooms: $15.00 each.\n9. Utilities: The tenant shall be responsible and pay for electric, cable, telephone, and internet\nservice to the apartment. The landlord is responsible for, and will pay, the utilities for the gas\nappliances that provide heat and hot water service to the apartment and for the water supply\nservice.\n\n313\n\n\x0c10. Early Termination: Tenant agrees to occupy the apartment and to pay rent during the full\nterm of lease. Owner will release tenant from tenant\xe2\x80\x99s obligation to complete the full term of this\nlease provided:\n(a) Tenant gives at least one-month\xe2\x80\x99s written notice of his intention to leave. Notice should be\nmailed to Owner at address as stated at the top of this lease, and\n(b) Tenant pays the regular rent for one month after date of written notice, and\n(c) Tenant will let owner keep the security deposit to cover such rental expenses as advertising,\ntraveling, and showing apartment caused by the earlier termination.\n11. Use of Premises: The tenant shall use the apartment as private living quarters for no more\nthan ____________ occupants. Tenant agrees not to use the apartment for business purposes.\nThe tenant shall not violate any regulation of the Board of Health, Fire Underwriters, City\nOrdinance, or State or Federal laws of any nature, and shall not use the apartment for any\nunlawful or immoral purpose.\n12. Assignment or Subletting: The tenant agrees that he will not assign this lease or sublet the\napartment, or any part of it, without the written consent of the owner. Said consent shall not be\nunreasonably withheld and the landlord will only refuse to consent for a good reason.\n13. Repairs: Plumbing leaks, failure of heating or hot water systems, and electrical malfunctions\nwill be repaired by the landlord within a reasonable time after the tenant notifies the owner. To\navoid more damage to the apartment, the tenant agrees to give notice of the need of said repairs\nto the landlord as soon as possible. Landlord is not required to give notice of entry of the\napartment to evaluate and/or make emergency repairs.\n14. Insurance: The owner\xe2\x80\x99s insurance policy covers damage or loss by fire, theft, or otherwise,\nto the building and owner\xe2\x80\x99s furnishings only. It is the responsibility of the tenant to protect with\nrenters insurance tenant\xe2\x80\x99s own personal property. Tenant agrees to make no claims against\nowner for any such damage or loss.\n15. Pets: No pets of any kind are allowed in the apartment.\n16. Snow Removal and Lawn Maintenance: The landlord is responsible for all snow removal\nat the premises, as well as lawn maintenance.\n17. Tenant Privacy: Tenant will have quiet enjoyment of said apartment. Landlord will give 24hour notice of intent to enter said apartment unless emergency repairs are required.\n\n314\n\n\x0c18. Signatures: The person signing this lease as the tenant states that she/he has the authority to\nsign for all other persons who will occupy the apartment.\n_______________________________________, Tenant\nDated: _________________________\n\n_______________________________________, Landlord\nDated: _________________________\n\nReferences:\nAbout Rent Stabilization. (n.d.). Retrieved July 27, 2018, from\nhttp://metcouncilonhousing.org/help_and_answers/about_rent_stabilization\nFrequently Asked Questions (FAQs). (n.d.). Retrieved July 27, 2018, from\nhttps://www1.nyc.gov/site/rentguidelinesboard/resources/rent-stabilization.page\nN.Y. State Codes & Statutes, (2015, October 23) Retrieved July 27, 2918 from\nhttps://www.nycourts.gov/lawlibraries/nycodesstatutes.shtml\nNew York Rental Laws. (2017, April 24). Retrieved July 27, 2018, from\nhttps://www.landlordology.com/new-york-landlord-tenant-laws/\nNew York State Division of Human Rights. (n.d.). Fair Housing Guide. Retrieved July 27, 2018,\nfrom https://dhr.ny.gov/sites/default/files/pdf/nysdhr-fair-housing-guide.pdf\nOffice of the New York State Attorney General. (n.d.). Tenants\' Rights Guide. Retrieved July 27,\n2018, from https://ag.ny.gov/sites/default/files/tenants_rights.pdf\nPogue, D. L., Clifford, E., & Schwartz, A. L. (2009). Understanding New York Law, 2013-14.\nUpstate Legal Publishers\nSexual Harassment in Housing Initiative. (2018, July 23). Retrieved July 27, 2018, from\nhttps://www.justice.gov/crt/sexual-harassment-housing-initiative\nThe Housing Council. (2007, November 12). Tenant Rights & Responsibilities. Retrieved July\n27, 2018, from https://www.rochester.edu/reslife/assets/pdf/non/Tenants-RightsResponsibilities.pdf\n\n315\n\n\x0cCHAPTER 14\nELEMENTS OF A CONTRACT, CONSUMER PROTECTIONS, AND\nBANKRUPTCY\nINTRODUCTION\nIn law school, the contracts course is one, if not the most, important courses taught. It typically is\na two-semester course which demonstrates the depth and complexity of the subject matter. This\nchapter will explain the very basic elements of contract law and how it affects private citizens and\nconsumers every day. To that end, some basic consumer protections provided under the law will\nbe touched upon. The chapter will end with a basic explanation of the ultimate consumer protection\nlaw, bankruptcy.\nSome contracts have already been discussed in previous chapters. Purchase offers for real property,\nleases, separation agreements, and prenuptial agreements are all contracts. Most simply stated, a\ncontract is a legally enforceable promise.\nMost contracts are not overly formal and not in writing. Every time you buy a pizza or put gas in\nyour car, you are entering into a contract. Some contracts must be in writing and many contracts\nare. Because contracts are a part of everyday life a basic understanding of them is important.\n\nELEMENTS OF A CONTRACT\nTo be valid, a contract must generally contain all of the following elements:\n\xe2\x80\xa2 Offer\n\xe2\x80\xa2 Acceptance\n\xe2\x80\xa2 Consideration\n\xe2\x80\xa2 Legality\nOFFER:\nContracts always start with an offer. An offer is an expression of a willingness to enter into a\ncontract on certain terms. It is important to establish what is and is not an offer. Offers must be\nfirm, not ambiguous, or vague. A person who is making the offer is called the offeror.\nInvitation to Treat: Offers are different than an invitation to treat. An invitation to treat is not an\noffer. When you list your home for sale, you are not making an offer; you are making an offer to\ntreat. You are inviting potential buyers to make an offer to you to buy your home. The same is true\nwith most advertising. The stores are making an offer to treat. They are expressing their willingness\nto sell you something if you offer them their asking price. However, they are not bound to accept\nyour offer. For example, you place an ad online to sell your automobile for a certain price.\nSomeone makes an offer to buy the automobile from you at full price. Do you have to accept their\noffer? No. You are making an offer to treat, and you are not bound to accept their actual offer to\nbuy your automobile.\nPuffery: Advertisers often use puffery to promote their products. So, was the advertising slogan\n\xe2\x80\x9cRed Bull Gives You Wings\xe2\x80\x9d meant to be a true statement or puffery? In a class action lawsuit\n316\n\n\x0cfiled on Jan. 16, 2013 in the U.S. District Court of the Southern District of New York by Benjamin\nCareathers, Mr. Careathers claimed he had been drinking Red Bull since 2002. His lawsuit argued\nthat Red Bull mislead consumers about the superiority of its products starting with its slogan \xe2\x80\x9cRed\nBull gives you wings\xe2\x80\x9d and its claims of increased performance, concentration, and reaction speed.\nRed Bull eventually settled the lawsuit and emailed a statement to BevNET.com, Inc., a beverage\noriented media company stating, \xe2\x80\x9cRed Bull settled the lawsuit to avoid the cost and distraction of\nlitigation. However, Red Bull maintains that its marketing and labeling have always been truthful\nand accurate, and denies any and all wrongdoing or liability.\xe2\x80\x9d\n(See https://www.bevnet.com/news/2014/red-bull-to-pay-13-million-for-false-advertisingsettlement/ for more information.)\nCourts will determine whether a statement in advertising is false versus puffery by using the\n\xe2\x80\x9creasonable person\xe2\x80\x9d standard. In other words, would a reasonable person believe the exaggerated\nstatement in an advertisement is meant to be true? It is hard to imagine a jury would find that the\nRed Bull advertisement that by drinking their product one would grow wings was anything but\npuffery.\nCounter-Offers: A counter-offer negates the original offer. It alters the original offer, and by\ndoing, so releases the person making the original offer from any obligation. For example, A makes\nan offer to treat regarding the sale of A\xe2\x80\x99s automobile for $10,000.00. B offers A $9,000.00. If A\naccepts this offer, B is bound to purchase the vehicle for that price. A does not have to accept B\xe2\x80\x99s\noffer and is not bound to. However, A then makes a counter-offer to B that A will sell the vehicle\nfor $9,500.00. B is not bound to buy the vehicle for that price, but A is now bound to sell the\nvehicle to B for that price if B accepts the counter-offer.\nACCEPTANCE:\nAcceptance by the offeree (the person accepting an offer) is the unconditional agreement to all the\nterms of the offer. There must be what is called a \xe2\x80\x9cmeeting of the minds\xe2\x80\x9d between the parties of\nthe contract. This means both parties to the contract understand what offer is being accepted. The\nacceptance must be absolute without any deviation, in other words, an acceptance in the \xe2\x80\x9cmirror\nimage\xe2\x80\x9d of the offer. The acceptance must be communicated to the person making the offer. Silence\ndoes not equal acceptance.\nCONSIDERATION:\nConsideration is the act of each party exchanging something of value to their detriment. A sells\nA\xe2\x80\x99s automobile to B. A is exchanging and giving up A\xe2\x80\x99s automobile while B is exchanging and\ngiving up B\xe2\x80\x99s cash. Both parties must provide consideration.\nPast Consideration: Voluntarily doing something for someone is not consideration. A see\xe2\x80\x99s B\xe2\x80\x99s\nlawn needs to be cut so A voluntarily does so. B comes home from work and is so pleased that B\ngives A $30 for cutting the lawn. The following week A cuts B\xe2\x80\x99s lawn again without B asking A\nto do so. A now asks B for $30 for cutting the lawn and B refuses to do so. A claims they have a\ncontract since A has provided consideration by mowing B\xe2\x80\x99s lawn, even though it was voluntary.\nA is incorrect. B is not obligated to provide consideration to A. There is no contract. However, if\nB had asked A to mow the lawn, but did not set the price, A would probably be able to enforce the\ncontract after mowing the lawn because B requested he do so.\n317\n\n\x0cPerformance of an Existing Duty: If a person has a duty to do something, such as a public\nservant, the performance of the duty is not consideration.\nPromissory Estoppel: In some instances, one party is not providing consideration but is relying\non a reasonable promise made by another. A party that that is induced to action based on the\nreasonable promise may be able to enforce the promise under the legal theory of promissory\nestoppel.\nThis is explained in the Restatement (Second) of Contracts* \xc2\xa7 90. Promise Reasonably Inducing\nAction Or Forbearance:\n(1) A promise which the promisor should reasonably expect to induce action or\nforbearance on the part of the promisee or a third person and which does induce\nsuch action or forbearance is binding if injustice can be avoided only by\nenforcement of the promise. The remedy granted for breach may be limited as\njustice requires.\n(2) A charitable subscription or a marriage settlement is binding under Subsection\n(1) without proof that the promise induced action or forbearance.\nFor example, A works for B who has promised to provide A retirement benefits if A works for B\nfor 25 years. After A is employed with B for 15 years, B tells A that the retirement benefits will\nnow be half the amount originally promised. A can enforce the original promise under the theory\nof promissory estoppel even though A has provided no consideration. A can make the case that A\nwas induced and acted on this promise.\n*(The Restatement (Second) of the Law of Contracts is a legal treatise often cited by judges and\nlawyers regarding the general principles of contract common law. It is one of the most recognized\nand cited legal treatises in American law.)\nLEGALITY:\nThe fourth required element of a valid contract is legality. The basic rule is that courts will not\nenforce an illegal bargain. Contracts are only enforceable when they are made with the intention\nthat they legal, and that the parties intend to legally bind themselves to their agreement. An\nagreement between family members to go out to dinner with one member covering the check is\nlegal but is not likely made with the intent to be a legally binding agreement. Just as a contract to\nbuy illegal drugs from a drug dealer is made with all the parties knowing that what they are doing\nis against the law and therefore not a contract that is enforceable in court.\nLack of Mental Capacity: The capacity to enter into a contract may be compromised by mental\nillness or intellectual deficiency. Issues of dementia and Alzheimer\xe2\x80\x99s can blur the lines of\ncompetency to sign a contract. Competency to enter into a contract requires more than a transient\nsurge of lucidity. It requires the ability to understand not only the nature and quality of the\ntransaction, but an understanding of its significance and consequences. If a person is found to lack\nthe mental capacity to enter into a contract, then the contract is not automatically void but it is\nvoidable.\n318\n\n\x0cMinors and Contracts: Minors under the age of 18-years-old are allowed to sign contracts, but\nthey are voidable at the minor\xe2\x80\x99s election. The exception to this rule is that contracts for necessities\nare not voidable. Necessities are general goods or services necessary for subsistence, health,\ncomfort, or education. The burden to prove a contract is for necessities for a minor is on the\nplaintiff. Minors can affirm their contract made while a minor formally or by actions upon reaching\nthe age of 18.\nContracts That Must Be In Writing: As already mentioned above, not all contracts have to be\nin a written format. However, some absolutely do, or they are voidable. Under the common law\ndoctrine of the \xe2\x80\x9cStatute of Frauds,\xe2\x80\x9d which has been codified in the General Obligations Law\n(GOB), contracts for the purchase of real property (GOB \xc2\xa7 5-703), contracts that cannot be\nperformed in less than 1 year, and contracts that guarantee the debt of another (co-signers) (GOB\n\xc2\xa7 5-701) must all be in writing. It is important to understand that just about any form of writing is\nacceptable. A handwritten contract to purchase real property on a napkin is acceptable if all the\nelements of a contract are met. The use of email and text message may also acceptable under GOB\n\xc2\xa7 5-701(4).\nUNILATERAL VERSUS BILATERAL CONTRACTS: Most contracts are bilateral, meaning\nboth parties are in agreement and the four basic elements of a contract exist. For example, B\noffers to buy A\xe2\x80\x99s automobile for a specific price and A accepts the offer and agrees to give B the\nautomobile upon receipt of those specific funds. Both parties are agreeing to the contractual\narrangement. It is bilateral. In a unilateral contract, one party is making an offer and promise if\nsomeone does something in return. There is no agreement necessarily between two individuals as\nthere is in a bilateral contract. However, an offer is made and if another individual accepts the\noffer and performs, an enforceable contract exists. An example would be if A offers a reward of\n$100 to the person who finds and returns A\xe2\x80\x99s missing cat. If B finds and returns the cat to A, A\nwould be bound to pay B the $100 reward. This is a unilateral contract.\nGIFT VERSUS CONTRACT:\nGifts are very similar to contracts, but they are different. Gifts do require an offer, acceptance, and\ndelivery of the gift, but are generally not enforceable. If A promises to give B a birthday gift but\nfails to do so, B cannot enforce the promise. There is no consideration provided by B. However,\nB is also in no worse position than before the promise was made. From a legal standpoint, if a\nparty does not follow through with the promise of a gift, the parties are in no worse position\nbecause of it, and therefore there is no cause of action.\n\nCONSUMER PROTECTIONS\nCONSUMER CONTRACTS:\nThe General Obligations Law (GOB) \xc2\xa7 5-327 defines a consumer contract as:\n\xe2\x80\x9cConsumer contract\xe2\x80\x9d means a written agreement entered into between a creditor,\nseller or lessor as one party with a natural person who is the debtor, buyer or lessee\nas the second party, and the money, other personal property or services which are\n319\n\n\x0cthe subject of the transaction are primarily for personal, family or household\npurposes;\xe2\x80\x9d\nThere are numerous consumer protection laws under federal and NYS statutes. The following are\njust a few.\nNew York Deceptive Trade Practice: NY Gen Bus L \xc2\xa7\xc2\xa7 349-350 prohibits deceptive trade\npractices, such as false advertising, and Vehicle and Traffic Law (VAT) \xc2\xa7 417-b and Gen. Bus.\n\xc2\xa7392-addresses the tampering with a car\'s odometer.\nNew York Interest Rates: GOB \xc2\xa7 5-501(1) and Banking \xc2\xa7 14-a address interest rates and usury\nregulations. The maximum interest rate a lender can charge for a loan is 16%.\nNew York Identity Theft:\nIt is a crime to use someone else\'s personally identifying information to secure credit or purchase\ngoods.\n\xe2\x80\xa2 New York Penal Law Section 190.77 (identity theft offenses)\n\xe2\x80\xa2 New York Penal Law Section 190.78 (third degree identity theft)\n\xe2\x80\xa2 New York Penal Law Section 190.79 (second degree identity theft)\n\xe2\x80\xa2 New York Penal Law Section 190.80 (first degree identity theft)\n\xe2\x80\xa2 New York Penal Law Section 190.80-a (aggravated identity theft)\nNew York Lemon Law: General Business Law \xc2\xa7 198-a protects consumers who purchase or lease\nnew automobiles while General Business Law \xc2\xa7 198-b protects consumers who purchase used\nautomobiles from a dealer. Private sales are not covered under NYS\xe2\x80\x99s Lemon Law.\nNew Automobiles: For new automobiles, the law places a duty on the manufacturer to\ncorrect a problem during the first 18,000 miles or two years, whichever comes first, free of\ncharge to the buyer. If the manufacturer or dealer is unable to repair the problem after a\nreasonable number of attempts, and if the problem substantially impairs the value of the\ncar to the consumer, then the manufacturer, at the consumer\xe2\x80\x99s option, must either\n\xe2\x80\xa2\nrefund the full purchase (or lease) price, or\n\xe2\x80\xa2\noffer a comparable replacement car.\nThere additional restrictions placed on this law once a vehicle reaches 12,000 miles or more\nin terms of the amount of a refund the consumer will get.\nUsed Automobiles: For used automobiles purchased from a dealer (which is defined as a\nperson selling 3 or more vehicles over a 12-month period of time), you are entitled to the\nfollowing warranty:\n\nAutomobiles with 36,000 miles or less\nAutomobiles with over 36,000 up to 80,000\nmiles\n\n90 days or 4,000 miles, whichever comes first\n60 days or 3,000 miles, whichever comes first\n\n320\n\n\x0cAutomobiles with more than 80,000 miles\n\nNo warranty\n\nConsumer Contracts Cooling Off Period: There is a three day \xe2\x80\x9ccooling off period\xe2\x80\x9d that applies\nto door-to-door solicitations, dating services, health clubs, and home improvement contracts.\nContracts for those types of services must clearly stipulate your right to cancel the agreement\nwithin 72 hours.\nFair Debt Collection Practices Act (FDCPA): This is a federal statute that is enforced by the\nConsumer Financial Protection Bureau. The general purpose of the law is to eliminate abusive\npractices in the collection of consumer debts and promote fair debt collection. A few of the\nprohibited actions of debt collectors are:\n\xe2\x80\xa2 Contacting consumers by telephone outside of the hours of 8:00 a.m. to 9:00 p.m. local\ntime.\n\xe2\x80\xa2 Communicating with consumers after receiving written notice that said consumer\nwishes no further communication with the debt collector.\n\xe2\x80\xa2 Causing a telephone to ring or engaging any person in telephone conversation\nrepeatedly or continuously: with intent to annoy, abuse, or harass a person.\n\xe2\x80\xa2 Communicating with consumers at their place of employment after having been\nadvised that this is unacceptable.\n\xe2\x80\xa2 Contacting consumer known to be represented by an attorney.\n\xe2\x80\xa2 Threatening arrest or legal action that is either not permitted or not actually\ncontemplated.\n\xe2\x80\xa2 The use of abusive or profane language by the debt collector.\n\xe2\x80\xa2 Reporting false information on a consumer\'s credit report or threatening to do so in\nthe process of collection.\nCredit Card Accountability Responsibility and Disclosure Act of 2009, (CARD Act):\nThis federal consumer protection law was passed to reform the credit card business by\nmandating more transparency, and requiring easier-to-understand credit card terms. Some of\nthe protections the law provides credit card users are:\n\xe2\x80\xa2 retroactive interest rate increases on existing card balances is prohibited\n\xe2\x80\xa2 increased the time to pay monthly bills\n\xe2\x80\xa2 requires greater advance notice of changes in credit card terms\n\xe2\x80\xa2 provides consumers the right to opt out of significant changes in terms on accounts.\n\xe2\x80\xa2 provides consumers with more time, 45 days instead of 15, to shop around for better\ndeals if they don\'t like the new terms\n\xe2\x80\xa2 bans the issuance of credit cards to anyone under 21, unless they have adult co-signers\non the accounts or can show proof they have enough income to repay the card debt\n\xe2\x80\xa2 requires that credit card companies stay at least 1,000 feet from college campuses if\nthey are offering free food or gifts to entice students to apply for credit cards\n\nBANKRUPTCY\nThere are occasions were individuals (and companies) find themselves in so much debt, they\ncan no longer pay their bills and function financially. This is where bankruptcy can assist a\n321\n\n\x0cperson by relieving them of their debt burden and give them a fresh start. The first thing to\nunderstand about bankruptcy is that is a federal legal action. There is no New York State law\nallowing for bankruptcy. Our Founders realized that too much debt can become a problem\nand set forth in the U.S. Constitution a remedy.\n\xe2\x80\x9cThe Congress shall have Power To...establish...uniform Laws on the subject of\nBankruptcies throughout the United States....\xe2\x80\x9d\nARTICLE I, SECTION 8, CLAUSE 4\nPersonal bankruptcies are covered primarily under two parts of the U.S. Bankruptcy Code,\nChapter 7\xe2\x80\x99s and Chapter 13\xe2\x80\x99s.\nChapter 7 Bankruptcy: Chapter 7 liquidation, commonly referred to as straight bankruptcy,\nis often what people mean or thinks of when they use or hear the term generically. In its\nsimplest form, Chapter 7 wipes out most, but not all of your debts and, in return, you may\nhave to surrender some of your property. Chapter 7 doesn\xe2\x80\x99t include a repayment plan. Your\ndebts are simply eliminated forever.\nTo qualify for a Chapter 7 bankruptcy, you must first pass the means test. If you have too\nmany means, i.e. income or money, you can\xe2\x80\x99t declare Chapter 7 bankruptcy. Second, you\nmust receive required credit counseling. At some point during the six months before you file\nfor bankruptcy, you have to receive counseling and get a certificate from a court-approved\nnonprofit credit counselor.\nSome debts cannot be discharged and will still be owed by the debtor even after the\nbankruptcy. Some assets are allowed to be kept by the debtor (exemptions) like a home\nallowance, a motor vehicle, and personal property up to certain amounts.\nSome\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nof the non-dischargeable debts are:\nTaxes\nDebts owed to spouse (maintenance, child support, divorce property settlements)\nCredit Card \xe2\x80\x9cluxury\xe2\x80\x9d purchases over $650 within 90 days of the bankruptcy filing\nStudent loans with rare exceptions\nFines, penalties, restitution\nPersonal Injury judgments\nDebts not listed in the Bankruptcy filing\n\nWhen you file a Chapter 7 bankruptcy, almost all of your assets and property become\nproperty of the bankruptcy estate. A bankruptcy trustee is appointed and given the authority\nto sell your assets to pay your creditors. However, under the bankruptcy law, there are asset\nexemptions. The law allows a person to retain some of their assets. Exemptions allow you to\nkeep a certain amount of your property so that you can make a fresh start after the bankruptcy.\nHow much property a debtor can keep in a Chapter 7 bankruptcy depends on the value of the\nassets and where the debtor lives.\n\n322\n\n\x0cThe 2018 NYS Homestead Exemption for a debtor\xe2\x80\x99s residence is: $170,825 for the counties\nof Kings, New York, Queens, Bronx, Richmond, Nassau, Suffolk, Rockland, Westchester,\nand Putnam; $142.350 for the counties of Dutchess, Albany, Columbia, Orange, Saratoga,\nand Ulster; $85,400 for the remaining counties in the state.\nThere are also personal property exemptions. In 2018, a debtor may keep a motor vehicle in\nvalue up to $4,550, or $11,375 if the vehicle is equipped for a disabled person. This is\ndoubled if a married couple both file.\nAs of 2018, debtors can keep most household goods and clothing, and their tools that are\nnecessary for their employment or trade up to a total of $11,375.\nFor the most part, debtors keep their retirement assets like their IRA, 401(k), Keogh, or other\nqualified retirement plans. Social Security, unemployment, disability, public assistance,\nworkers\xe2\x80\x99 compensation, or veteran\xe2\x80\x99s benefits are also exempt from bankruptcy garnishment.\nChapter 13 Bankruptcy: The primary difference with a Chapter 7 and Chapter 13 is that\nChapter 13 is a repayment plan. It freezes debt and accumulating interest but requires a plan\nto repay creditors that must be approved by the bankruptcy court.\nThere are other special kinds of bankruptcy. Chapter 11 bankruptcy is available to\nindividuals, but primarily is used for large business reorganizations. Chapter 12 bankruptcy\nis similar to a Chapter 13 bankruptcy, but for family farmers and family fishermen.\n\nReferences:\nBankruptcy. (n.d.). Retrieved July 28, 2018, from http://www.uscourts.gov/servicesforms/bankruptcy\nCreditCards.com. (2016, January 28). 12 consumer protections in the Credit CARD Act.\nRetrieved July 28, 2018, from https://www.creditcards.com/credit-card-news/help/card-act12-consumer-protections-6000.php\nDuggan, O. (2014, October 11). $13m lawsuit proves Red Bull doesn\'t give you wings.\nRetrieved July 28, 2018, from\nhttps://www.telegraph.co.uk/news/worldnews/northamerica/usa/11155731/13m-lawsuitproves-Red-Bull-doesnt-give-you-wings.html\nFair Debt Collection Practices Act. (2016, March 23). Retrieved July 28, 2018, from\nhttps://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fairdebt-collection-practices-act-text\nInstitute, T. A. (n.d.). Shop ALI Publications. Retrieved July 27, 2018, from\nhttps://www.ali.org/publications/show/contracts/\n\n323\n\n\x0cNew Car Lemon Law Fact Sheet. (n.d.). Retrieved July 28, 2018, from\nhttps://ag.ny.gov/consumer-frauds/new-car-lemon-law-fact-sheet\nNew York Bankruptcy Exemption Laws. (n.d.). Retrieved July 28, 2018, from\nhttps://www.legalconsumer.com/bankruptcy/bankruptcy-law.php?ST=NY\nNew York Homestead Laws. (n.d.). Retrieved July 28, 2018, from\nhttps://statelaws.findlaw.com/new-york-law/new-york-homestead-laws.html\nNew York Lemon Laws. (n.d.). Retrieved July 28, 2018, from\nhttps://statelaws.findlaw.com/new-york-law/new-york-lemon-laws.html\nNew York State. (n.d.). N.Y. State Codes & Statutes. Retrieved July 28, 2018, from\nhttps://www.nycourts.gov/lawlibraries/nycodesstatutes.shtml\nPogue, D. L., Clifford, E., & Schwartz, A. L. (2009). Understanding New York Law, 201314. Upstate Legal Publishers\nRed Bull to Pay $13 Million for False Advertising Settlement. (2015, September 10).\nRetrieved July 28, 2018, from https://www.bevnet.com/news/2014/red-bull-to-pay-13million-for-false-advertising-settlement/\nUS Legal, Inc. (n.d.). USLegal. Retrieved July 28, 2018, from\nhttps://definitions.uslegal.com/i/invitation-to-treat/\nUS Legal, Inc. (n.d.). USLegal. Retrieved July 28, 2018, from\nhttps://definitions.uslegal.com/p/puffery/\nUS Legal, Inc. (n.d.). USLegal. Retrieved July 28, 2018, from\nhttps://definitions.uslegal.com/p/promissory-estoppel/\n\n324\n\n\x0cCHAPTER 15\nPRIVACY\nINTRODUCTION\nThe word privacy does not appear in the United States Constitution. Yet, privacy is a fundamental\nright of Americans. This chapter will explain how despite the fact that the word privacy is not\nspecifically mentioned in the United States Constitution, it is still a constitutionally protected right.\nWith the advent of heightened concerns of terrorism, cyber-attacks, security, and the use of social\nmedia, a basic understanding of privacy law is becoming increasingly important.\n\nTHE HISTORICAL DEVELOPMENT OF PRIVACY LAW\nIn 1890, the Harvard Law Review published an article which addressed the \xe2\x80\x9cright to be let alone.\xe2\x80\x9d\nIt was co-authored by two legal scholars, Samuel Warren and Louis Brandies. Louis Brandies was\na law professor at the time, but went on to later become one of the more respected U.S. Supreme\nCourt justices. Perhaps in some ways, what they mention as \xe2\x80\x9cRecent inventions and business\nmethods\xe2\x80\xa6\xe2\x80\x9d is as pertinent today regarding social media and smartphones as it was to cameras and\nnewspapers in 1890.\n\xe2\x80\x9cRecent inventions and business methods call attention to the next step which must\nbe taken for the protection of the person, and for securing to the individual what\nJudge Cooley calls the right "to be let alone" Instantaneous photographs and\nnewspaper enterprise have invaded the sacred precincts of private and domestic\nlife; and numerous mechanical devices threaten to make good the prediction that\n"what is whispered in the closet shall be proclaimed from the house-tops." For years\nthere has been a feeling that the law must afford some remedy for the unauthorized\ncirculation of portraits of private persons; and the evil of invasion of privacy by the\nnewspapers, long keenly felt, has been but recently discussed by an able writer. The\nalleged facts of a somewhat notorious case brought before an inferior tribunal in\nNew York a few months ago, directly involved the consideration of the right of\ncirculating portraits; and the question whether our law will recognize and protect\nthe right to privacy in this and in other respects must soon come before our courts\nfor consideration.\xe2\x80\x9d\nIn 1960, the California Law Review published an article entitled \xe2\x80\x9cPrivacy.\xe2\x80\x9d It was written by\nwidely recognized legal scholar William Prosser. In this law review article, Prosser discusses the\nWarren and Brandies law review article mentioned above in some detail. He also compiled and\nreviewed the various privacy cases from the various courts and jurisdictions. Prosser concluded\nthat there are four distinct but related actions that violate a person\xe2\x80\x99s right to privacy.\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\nIntrusion: The intrusion, whether physically or otherwise, upon the solitude of another\nin a highly offensive manner is a violation of one\xe2\x80\x99s privacy.\nPrivate Facts: The publication of private information about a person who is not a\npublic figure is a violation of one\xe2\x80\x99s privacy.\n325\n\n\x0c\xe2\x80\xa2\n\xe2\x80\xa2\n\nFalse Light: The publication of a highly offensive and false impression of another is a\nviolation of one\xe2\x80\x99s privacy.\nAppropriation: Taking and using a person\xe2\x80\x99s name or likeness for financial or other\nadvantage without that person\xe2\x80\x99s consent is a violation of one\xe2\x80\x99s privacy.\n\nProsser argued these various privacy violations in terms of tort actions and the right to sue. While\nAmericans most likely would overwhelming agree that all four actions, intrusion, private facts,\nfalse light, and appropriation are violations of one\xe2\x80\x99s privacy, with the everyday use of social media,\nare those lines being blurred voluntarily?\nGRISWOLD v CONNECTICUT, 381 U.S. 479 (1965): As already mentioned, the U.S.\nConstitution does not include the word privacy in it. However, 1965, the US Supreme Court held\nin Griswold v. Connecticut that the right to privacy does exist. The case involved a Connecticut\ndoctor who had been arrested and fined $100 by a Connecticut trial court for counseling married\ncouples about birth control devices. Such advice violated a Connecticut statute making birth\ncontrol counseling a misdemeanor.\nThe U.S. Supreme court overruled the conviction and declared the Connecticut statute to be\nunconstitutional. The Court found that the spirit, structure, and specific provisions of the Bill of\nRights created \xe2\x80\x98zones of privacy\xe2\x80\x99 which are broad enough to protect aspects of personal and family\nlife, in this case, marital privacy. The Court declared \xe2\x80\x9c\xe2\x80\xa6that specific guarantees in the Bill of\nRights have penumbras, formed by emanations from those guarantees that help give them life and\nsubstance.\xe2\x80\x9d\nROE v. WADE, 410 U.S. 113 (1973): One could argue the Roe v. Wade is the most politically\nand socially controversial landmark U.S. Supreme Court cases of our time. The 1973 decision\nauthored by Justice Harry Blackmun enunciated a woman\xe2\x80\x99s right to privacy.\nThe question before the court was whether a Texas statute that criminalized all abortions except\nthose necessary to save the mother\xe2\x80\x99s life was constitutional. The Court declared, in a 7-2 majority\nopinion, that the Texas statute was unconstitutional as it violated a woman\xe2\x80\x99s right to privacy\nstating, \xe2\x80\x9cThis right of privacy, whether it be founded in the Fourteenth Amendment\'s concept of\npersonal liberty and restrictions upon state action, as we feel it is, or, as the District Court\ndetermined, in the Ninth Amendment\'s reservation of rights to the people, is broad enough to\nencompass a woman\'s decision whether or not to terminate her pregnancy.\xe2\x80\x9d\nThe Court also acknowledged the legal tension between a woman\xe2\x80\x99s privacy right and the State\xe2\x80\x99s\ninterest in the life of the unborn child. In addressing this legal issue, the Court constructed the\nfollowing trimester framework.\n1. A state criminal abortion statute of the current Texas type, that excepts from\ncriminality only a lifesaving procedure on behalf of the mother, without regard to\npregnancy stage and without recognition of the other interests involved, is violative\nof the Due Process Clause of the Fourteenth Amendment.\n\n326\n\n\x0c(a) For the stage prior to approximately the end of the first trimester, the abortion\ndecision and its effectuation must be left to the medical judgment of the pregnant\nwoman\'s attending physician.\n(b) For the stage subsequent to approximately the end of the first trimester, the\nState, in promoting its interest in the health of the mother, may, if it chooses,\nregulate the abortion procedure in ways that are reasonably related to maternal\nhealth.\n(c) For the stage subsequent to viability, the State in promoting its interest in the\npotentiality of human life may, if it chooses, regulate, and even proscribe, abortion\nexcept where it is necessary, in appropriate medical judgment, for the preservation\nof the life or health of the mother.\nA syllabus version of this case can be found in Chapter 4.\nPLANNED PARENTHOOD v CASEY, 505 U.S. 833 (1992): In 1992, the U.S. Supreme Court\nagain took up the issue of abortion in the Planned Parenthood v. Casey case. The state of\nPennsylvania had passed legislation regulating abortions requiring the following:\n\xe2\x80\xa2 Informed consent with a 24-hour waiting period prior to the procedure.\n\xe2\x80\xa2 Minor\xe2\x80\x99s seeking an abortion need the consent of one parent or a judge\xe2\x80\x99s order.\n\xe2\x80\xa2 A married woman must sign off that she notified her husband.\nIn a 5-4 decision, Court reaffirmed the core principle of Roe v Wade, but replaced the trimester\nframework with the \xe2\x80\x9cundue burden\xe2\x80\x9d test.\xe2\x80\x9d This new standard is that any law that places an \xe2\x80\x9cundue\nburden\xe2\x80\x9d on a woman\xe2\x80\x99s right to obtain an abortion before viability is unconstitutional. Under this\nnew standard, the only section of Pennsylvania\xe2\x80\x99s statute found to place and undue burden on a\nwoman\xe2\x80\x99s right to have an abortion before viability of a child was the requirement that a married\nwoman must inform her husband of her intent to have an abortion.\n\xe2\x80\x9cThe spousal notification requirement is thus likely to prevent a significant number\nof women from obtaining an abortion. It does not merely make abortions a little\nmore difficult or expensive to obtain; for many women, it will impose a substantial\nobstacle. We must not blind ourselves to the fact that the significant number of\nwomen who fear for their safety and the safety of their children are likely to be\ndeterred from procuring an abortion as surely as if the Commonwealth had\noutlawed abortion in all cases.\xe2\x80\x9d\nA syllabus version of this case can be found in Chapter 4.\n\nHIPAA\nThe Health Insurance Portability & Accountability Act, (HIPPA) is the federal statute passed by\nthe US Congress in 1996 to protect the privacy of medical information. The Department of Health\nand Human Services summarizes patients\xe2\x80\x99 rights on their website by publishing HIPAA General\nFact Sheets. The following information can be found in their General Fact Sheet entitled Your\nHealth Information Privacy Rights\n\n327\n\n\x0cMost of us feel that our health information is private and should be protected. That\nis why there is a federal law that sets rules for health care providers and health\ninsurance companies about who can look at and receive our health information.\nThis law, called the Health Insurance Portability and Accountability Act of 1996\n(HIPAA), gives you rights over your health information, including the right to get\na copy of your information, make sure it is correct, and know who has seen it.\nGet It.\nYou can ask to see or get a copy of your medical record and other health\ninformation. If you want a copy, you may have to put your request in writing and\npay for the cost of copying and mailing. In most cases, your copies must be given\nto you within 30 days.\nCheck It.\nYou can ask to change any wrong information in your file or add information to\nyour file if you think something is missing or incomplete. For example, if you and\nyour hospital agree that your file has the wrong result for a test, the hospital must\nchange it. Even if the hospital believes the test result is correct, you still have the\nright to have your disagreement noted in your file. In most cases, the file should be\nupdated within 60 days.\nKnow Who Has Seen It.\nBy law, your health information can be used and shared for specific reasons not\ndirectly related to your care, like making sure doctors give good care, making sure\nnursing homes are clean and safe, reporting when the flu is in your area, or reporting\nas required by state or federal law. In many of these cases, you can find out who\nhas seen your health information. You can:\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\nLearn how your health information is used and shared by your doctor\nor health insurer. Generally, your health information cannot be used for\npurposes not directly related to your care without your permission. For\nexample, your doctor cannot give it to your employer, or share it for things\nlike marketing and advertising, without your written authorization. You\nprobably received a notice telling you how your health information may be\nused on your first visit to a new health care provider or when you got new\nhealth insurance, but you can ask for another copy anytime.\nLet your providers or health insurance companies know if there is\ninformation you do not want to share. You can ask that your health\ninformation not be shared with certain people, groups, or companies. If you\ngo to a clinic, for example, you can ask the doctor not to share your medical\nrecords with other doctors or nurses at the clinic. You can ask for other\nkinds of restrictions, but they do not always have to agree to do what you\nask, particularly if it could affect your care. Finally, you can also ask your\nhealth care provider or pharmacy not to tell your health insurance company\nabout care you receive or drugs you take, if you pay for the care or drugs in\n\n328\n\n\x0c\xe2\x80\xa2\n\nfull and the provider or pharmacy does not need to get paid by your\ninsurance company.\nAsk to be reached somewhere other than home. You can make\nreasonable requests to be contacted at different places or in a different way.\nFor example, you can ask to have a nurse call you at your office instead of\nyour home or to send mail to you in an envelope instead of on a postcard.\n\nIf you think your rights are being denied or your health information is not being\nprotected, you have the right to file a complaint with your provider, health insurer,\nor the U.S. Department of Health and Human Services.\nTo learn more, visit www.hhs.gov/ocr/privacy/.\n\nFOIL\nFOIL is an acronym for the Freedom of Information Law. (Public Officers Law \xc2\xa7\xc2\xa7 87-90.) Passed\nin 1974 by the NYS Legislature, FOIL provides public access to NYS government documents,\nstatistics, and records. In other words, while citizens have a right to privacy, the government\ngenerally does not. The purpose of the law is set out in the statute. (Public Officers Law \xc2\xa7 84)\nLegislative declaration.\nThe legislature hereby finds that a free society is maintained when government is\nresponsive and responsible to the public, and when the public is aware of\ngovernmental actions. The more open a government is with its citizenry, the greater\nthe understanding and participation of the public in government.\nAs state and local government services increase and public problems become more\nsophisticated and complex and therefore harder to solve, and with the resultant\nincrease in revenues and expenditures, it is incumbent upon the state and its\nlocalities to extend public accountability wherever and whenever feasible.\nThe people\'s right to know the process of governmental decision-making and to\nreview the documents and statistics leading to determinations is basic to our society.\nAccess to such information should not be thwarted by shrouding it with the cloak\nof secrecy or confidentiality. The legislature therefore declares that government is\nthe public\'s business and that the public, individually and collectively and\nrepresented by a free press, should have access to the records of government in\naccordance with the provisions of this article.\nThe law requires all NYS agencies to keep FOIL request for six months, and to make them\navailable to the public, unless doing so would violate the privacy of the FOIL requester. NYS\nagencies subject to a FOIL request are not allowed to ask why the information is being requested.\n\nFERPA\nFERPA is an acronym for the Family Educational Rights and Privacy Act. The U.S. Department\nof Education provides information regarding FERPA on its website. The general purpose of the\n329\n\n\x0claw to provide privacy rights to students and parents regarding student educational records. The\nfollowing is from the Department of Education\xe2\x80\x99s website regarding FERPA.\n(https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html)\nThe Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. \xc2\xa7 1232g; 34\nCFR Part 99) is a Federal law that protects the privacy of student education records.\nThe law applies to all schools that receive funds under an applicable program of the\nU.S. Department of Education.\nFERPA gives parents certain rights with respect to their children\'s education\nrecords. These rights transfer to the student when he or she reaches the age of 18 or\nattends a school beyond the high school level. Students to whom the rights have\ntransferred are "eligible students."\nParents or eligible students have the right to inspect and review the student\'s\neducation records maintained by the school. Schools are not required to provide\ncopies of records unless, for reasons such as great distance, it is impossible for\nparents or eligible students to review the records. Schools may charge a fee for\ncopies.\nParents or eligible students have the right to request that a school correct records\nwhich parent or eligible student then has the right to a formal hearing. After the\nhearing, if the school still decides not to amend the record, the parent or eligible\nstudent has the right to place a statement with the record setting forth his or her\nview about the contested information.\nGenerally, schools must have written permission from the parent or eligible student\nin order to release any information from a student\'s education record. However,\nFERPA allows schools to disclose those records, without consent, to the following\nparties or under the following conditions (34 CFR \xc2\xa7 99.31):\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nSchool officials with legitimate educational interest;\nOther schools to which a student is transferring;\nSpecified officials for audit or evaluation purposes;\nAppropriate parties in connection with financial aid to a student;\nOrganizations conducting certain studies for or on behalf of the school;\nAccrediting organizations;\nTo comply with a judicial order or lawfully issued subpoena;\nAppropriate officials in cases of health and safety emergencies; and\nState and local authorities, within a juvenile justice system, pursuant to\nspecific State law.\n\nSchools may disclose, without consent, "directory" information such as a student\'s\nname, address, telephone number, date and place of birth, honors and awards, and\ndates of attendance. However, schools must tell parents and eligible students about\ndirectory information and allow parents and eligible students a reasonable amount\nof time to request that the school not disclose directory information about them.\n330\n\n\x0cSchools must notify parents and eligible students annually of their rights under\nFERPA. The actual means of notification (special letter, inclusion in a PTA\nbulletin, student handbook, or newspaper article) is left to the discretion of each\nschool.\nFor additional information, you may call 1-800-USA-LEARN (1-800-872-5327)\n(voice). Individuals who use TDD may use the Federal Relay Service.\nOr you may contact us at the following address:\nFamily Policy Compliance Office\nU.S. Department of Education\n00 Maryland Avenue, SW\nWashington, D.C. 20202-8520\n\nTHE USA PATRIOT ACT\nAfter the 9/11 terrorist attack in 2001, Congress passed the USA Patriot Act. The U.S. Department\nof\nJustice\xe2\x80\x99s\nwebsite\nhas\na\npage\nentitled\nPreserving\nLife\n&\nLiberty.\n(https://www.justice.gov/archive/ll/highlights.htm) The top of that page states the following\nregarding the Patriot Act.\nThe Department of Justice\'s first priority is to prevent future terrorist attacks. Since\nits passage following the September 11, 2001 attacks, the Patriot Act has played a\nkey part - and often the leading role - in a number of successful operations to protect\ninnocent Americans from the deadly plans of terrorists dedicated to destroying\nAmerica and our way of life. While the results have been important, in passing the\nPatriot Act, Congress provided for only modest, incremental changes in the law.\nCongress simply took existing legal principles and retrofitted them to preserve the\nlives and liberty of the American people from the challenges posed by a global\nterrorist network.\nThe remainder of this webpage summarizes the USA Patriot Act as follows:\nThe USA PATRIOT Act: Preserving Life and Liberty\n(Uniting and Strengthening America by Providing Appropriate Tools Required to\nIntercept and Obstruct Terrorism)\nCongress enacted the Patriot Act by overwhelming, bipartisan margins,\narming law enforcement with new tools to detect and prevent terrorism: The\nUSA Patriot Act was passed nearly unanimously by the Senate 98-1, and 357-66 in\nthe House, with the support of members from across the political spectrum.\nThe Act Improves Our Counter-Terrorism Efforts in Several Significant\nWays:\n\n331\n\n\x0c1. The Patriot Act allows investigators to use the tools that were already\navailable to investigate organized crime and drug trafficking. Many of the tools\nthe Act provides to law enforcement to fight terrorism have been used for decades\nto fight organized crime and drug dealers, and have been reviewed and approved\nby the courts. As Sen. Joe Biden (D-DE) explained during the floor debate about\nthe Act, "the FBI could get a wiretap to investigate the mafia, but they could not\nget one to investigate terrorists. To put it bluntly, that was crazy! What\'s good for\nthe mob should be good for terrorists." (Cong. Rec., 10/25/01)\n\xe2\x80\xa2\n\nAllows law enforcement to use surveillance against more crimes of terror.\nBefore the Patriot Act, courts could permit law enforcement to conduct electronic\nsurveillance to investigate many ordinary, non-terrorism crimes, such as drug\ncrimes, mail fraud, and passport fraud. Agents also could obtain wiretaps to\ninvestigate some, but not all, of the crimes that terrorists often commit. The Act\nenabled investigators to gather information when looking into the full range of\nterrorism-related crimes, including: chemical-weapons offenses, the use of\nweapons of mass destruction, killing Americans abroad, and terrorism financing.\n\n\xe2\x80\xa2\n\nAllows federal agents to follow sophisticated terrorists trained to evade\ndetection. For years, law enforcement has been able to use "roving wiretaps" to\ninvestigate ordinary crimes, including drug offenses and racketeering. A roving\nwiretap can be authorized by a federal judge to apply to a particular suspect, rather\nthan a particular phone or communications device. Because international terrorists\nare sophisticated and trained to thwart surveillance by rapidly changing locations\nand communication devices such as cell phones, the Act authorized agents to seek\ncourt permission to use the same techniques in national security investigations to\ntrack terrorists.\n\n\xe2\x80\xa2\n\nAllows law enforcement to conduct investigations without tipping off\nterrorists. In some cases, if criminals are tipped off too early to an investigation,\nthey might flee, destroy evidence, intimidate or kill witnesses, cut off contact with\nassociates, or take other action to evade arrest. Therefore, federal courts in narrow\ncircumstances long have allowed law enforcement to delay for a limited time when\nthe subject is told that a judicially-approved search warrant has been executed.\nNotice is always provided, but the reasonable delay gives law enforcement time to\nidentify the criminal\'s associates, eliminate immediate threats to our communities,\nand coordinate the arrests of multiple individuals without tipping them off\nbeforehand. These delayed notification search warrants have been used for decades,\nhave proven crucial in drug and organized crime cases, and have been upheld by\ncourts as fully constitutional.\n\n\xe2\x80\xa2\n\nAllows federal agents to ask a court for an order to obtain business records in\nnational security terrorism cases. Examining business records often provides the\nkey that investigators are looking for to solve a wide range of crimes. Investigators\nmight seek select records from hardware stores or chemical plants, for example, to\nfind out who bought materials to make a bomb, or bank records to see who\'s sending\n332\n\n\x0cmoney to terrorists. Law enforcement authorities have always been able to obtain\nbusiness records in criminal cases through grand jury subpoenas and continue to do\nso in national security cases where appropriate. These records were sought in\ncriminal cases such as the investigation of the Zodiac gunman, where police\nsuspected the gunman was inspired by a Scottish occult poet and wanted to learn\nwho had checked the poet\'s books out of the library. In national security cases where\nuse of the grand jury process was not appropriate, investigators previously had\nlimited tools at their disposal to obtain certain business records. Under the Patriot\nAct, the government can now ask a federal court (the Foreign Intelligence\nSurveillance Court), if needed to aid an investigation, to order production of the\nsame type of records available through grand jury subpoenas. This federal court,\nhowever, can issue these orders only after the government demonstrates the records\nconcerned are sought for an authorized investigation to obtain foreign intelligence\ninformation not concerning a U.S. person or to protect against international\nterrorism or clandestine intelligence activities, provided that such investigation of\na U.S. person is not conducted solely on the basis of activities protected by the First\nAmendment.\n2. The Patriot Act facilitated information sharing and cooperation among\ngovernment agencies so that they can better "connect the dots." The Act\nremoved the major legal barriers that prevented the law enforcement, intelligence,\nand national defense communities from talking and coordinating their work to\nprotect the American people and our national security. The government\'s\nprevention efforts should not be restricted by boxes on an organizational chart. Now\npolice officers, FBI agents, federal prosecutors and intelligence officials can protect\nour communities by "connecting the dots" to uncover terrorist plots before they are\ncompleted. As Sen. John Edwards (D-N.C.) said about the Patriot Act, "we simply\ncannot prevail in the battle against terrorism if the right hand of our government\nhas no idea what the left hand is doing" (Press release, 10/26/01)\n\xe2\x80\xa2\n\nProsecutors and investigators used information shared pursuant to section 218 in\ninvestigating the defendants in the so-called \xe2\x80\x9cVirginia Jihad\xe2\x80\x9d case. This prosecution\ninvolved members of the Dar al-Arqam Islamic Center, who trained for jihad in\nNorthern Virginia by participating in paintball and paramilitary training, including\neight individuals who traveled to terrorist training camps in Pakistan or Afghanistan\nbetween 1999 and 2001. These individuals are associates of a violent Islamic\nextremist group known as Lashkar-e-Taiba (LET), which operates in Pakistan and\nKashmir, and that has ties to the al Qaeda terrorist network. As the result of an\ninvestigation that included the use of information obtained through FISA,\nprosecutors were able to bring charges against these individuals. Six of the\ndefendants have pleaded guilty, and three were convicted in March 2004 of charges\nincluding conspiracy to levy war against the United States and conspiracy to\nprovide material support to the Taliban. These nine defendants received sentences\nranging from a prison term of four years to life imprisonment.\n\n333\n\n\x0c3. The Patriot Act updated the law to reflect new technologies and new threats.\nThe Act brought the law up to date with current technology, so we no longer have\nto fight a digital-age battle with antique weapons-legal authorities leftover from the\nera of rotary telephones. When investigating the murder of Wall Street Journal\nreporter Daniel Pearl, for example, law enforcement used one of the Act\'s new\nauthorities to use high-tech means to identify and locate some of the killers.\nAllows law enforcement officials to obtain a search warrant anywhere a terroristrelated activity occurred. Before the Patriot Act, law enforcement personnel were\nrequired to obtain a search warrant in the district where they intended to conduct a\nsearch. However, modern terrorism investigations often span a number of districts,\nand officers therefore had to obtain multiple warrants in multiple jurisdictions,\ncreating unnecessary delays. The Act provides that warrants can be obtained in any\ndistrict in which terrorism-related activities occurred, regardless of where they will\nbe executed. This provision does not change the standards governing the\navailability of a search warrant, but streamlines the search-warrant process.\n\xe2\x80\xa2\n\nAllows victims of computer hacking to request law enforcement assistance in\nmonitoring the "trespassers" on their computers. This change made the law\ntechnology-neutral; it placed electronic trespassers on the same footing as physical\ntrespassers. Now, hacking victims can seek law enforcement assistance to combat\nhackers, just as burglary victims have been able to invite officers into their homes\nto catch burglars.\n4. The Patriot Act increased the penalties for those who commit terrorist\ncrimes. Americans are threatened as much by the terrorist who pays for a bomb as\nby the one who pushes the button. That\'s why the Patriot Act imposed tough new\npenalties on those who commit and support terrorist operations, both at home and\nabroad. The Act:\n\n\xe2\x80\xa2\n\nProhibits the harboring of terrorists. The Act created a new offense that prohibits\nknowingly harboring persons who have committed or are about to commit a variety\nof terrorist offenses, such as: destruction of aircraft; use of nuclear, chemical, or\nbiological weapons; use of weapons of mass destruction; bombing of government\nproperty; sabotage of nuclear facilities; and aircraft piracy.\n\n\xe2\x80\xa2\n\nEnhanced the inadequate maximum penalties for various crimes likely to be\ncommitted by terrorists: including arson, destruction of energy facilities, material\nsupport to terrorists and terrorist organizations, and destruction of national-defense\nmaterials.\n\n\xe2\x80\xa2\n\nEnhanced a number of conspiracy penalties, including for arson, killings in\nfederal facilities, attacking communications systems, material support to terrorists,\nsabotage of nuclear facilities, and interference with flight crew members. Under\nprevious law, many terrorism statutes did not specifically prohibit engaging in\nconspiracies to commit the underlying offenses. In such cases, the government\n\n334\n\n\x0ccould only bring prosecutions under the general federal conspiracy provision,\nwhich carries a maximum penalty of only five years in prison.\n\xe2\x80\xa2\n\nPunishes terrorist attacks on mass transit systems.\n\n\xe2\x80\xa2\n\nPunishes bioterrorists.\n\n\xe2\x80\xa2\n\nEliminates the statutes of limitations for certain terrorism crimes and\nlengthens them for other terrorist crimes.\nThe government\'s success in preventing another catastrophic attack on the\nAmerican homeland since September 11, 2001, would have been much more\ndifficult, if not impossible, without the USA Patriot Act. The authorities Congress\nprovided have substantially enhanced our ability to prevent, investigate, and\nprosecute acts of terror.\n\nUSA FREEDOM ACT: On June 2, 2015, President Obama signed into law the USA Freedom\nAct. The Bill passed with bi-partisan support. The vote in the House was 338-88 and in the Senate\n67-32. This law was passed partly in response to bulk collection of Americans\xe2\x80\x99 phone records\nunder Section 215 of the Patriot Act. The law was crafted to help prevent the Patriot Act from\ninfringing on the civil liberties of U.S. citizens. The House of Representatives Judiciary Committee\npublished a summary of the law which states in part:\nPROTECTS CIVIL LIBERTIES\nEnds bulk collection: Prohibits bulk collection of ALL records under Section 215 of the\nPATRIOT Act, the FISA pen register authority, and national security letter statutes.\nPrevents government overreach: The bulk collection prohibition is strengthened by prohibiting\nlarge-scale, indiscriminate collection, such as all records from an entire state, city, or zip code.\nAllows challenges of national security letter gag orders: NSL nondisclosure orders must be\nbased upon a danger to national security or interference with an investigation. Codifies procedures\nfor individual companies to challenge nondisclosure orders. Requires periodic review of\nnondisclosure orders to determine necessity.\n(https://judiciary.house.gov/issue/usa-freedom-act/)\n\nDRONES AND PRIVACY\nThere are drones, and then there are drones. The military use of drones for both surveillance and\nas weapons has been around for some time now. According to the Council on Foreign Relations\nblog post by Micah Zenko on January 20, 2017 entitled Obama\xe2\x80\x99s Final Drone Strike Data, it is\nestimated that President Obama during his presidency as part of his counterterrorism efforts\nabroad, authorized 542 drone strikes that killed an estimated 3,797 people, including 324 civilians.\n335\n\n\x0cHowever, drones are now being used domestically and their use is expanding. One can find drones\nbeing sold online and at the mall. Farmers use them to survey their land. Various industries use\nthem to inspect their facilities and equipment that is hard to reach. Amazon is considering using\nthem to deliver packages. Hobbyists fly them for recreational purposes. The Federal Aviation\nAdministration has rules for the flying model aircraft.\n\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nFly under the Special Rule for Model Aircraft\nTo fly under the Special Rule for Model Aircraft you must:\nFly for hobby or recreation ONLY\nRegister your model aircraft\nFly within visual line-of-sight\nFollow community-based safety guidelines and fly within the programming of a\nnationwide community-based organization\nFly a drone under 55 lbs. unless certified by a community-based organization\nNever fly near other aircraft\nNotify the airport and air traffic control tower prior to flying within five miles of\nan airport*\nNever fly near emergency response efforts\n*The person flying the model aircraft is responsible for contacting the airport\ndirectly.\n\nThe law in NYS regarding the regulation of drones is mixed. NYC, Syracuse, and Orchard Park\nall have restrictions on the flying of drones within their municipality limits. With concerns\nregarding weaponized drones, their size, and use to violate the privacy rights of others, there is\nlegislation being considered in NYS to address the use of drones.\nIn January 2018, the NYS Troopers deployed four unmanned drones in various locations\nthroughout the state with plans to deploy another 14 by the end of the year. Official spokesman for\nthe troopers stated that the drones will be used for emergency response, traffic safety, and other\nlaw enforcement missions. (Daily News, New York State Police launching drones to aid in disaster\nresponse, traffic safety, by Glenn Blain, January 11, 2018.)\n\nINTERNET PRIVACY\nThe statement internet privacy is an oxymoron. It can be argued that privacy on the internet does\nnot exist. What is most interesting is how willingly many people give it up. The use of social\nmedia, smartphones and unsecured Wi-Fi are everyday occurrences.\nThe following excerpts are from The Harvard Gazette article, On internet privacy, be very afraid\nby Liz Mineo, Harvard Staff Writer dated August 24, 2017. She interviewed cybersecurity expert\nBruce Schneier, a fellow with the Berkman Klein Center for Internet & Society and the Belfer\nCenter for Science and International Affairs at Harvard Kennedy School. The interview illustrates\nhow the use of the internet subjects all of us to our loss of privacy. The article makes the point that\nwhile we may have legitimate concerns about the government violating our constitutionally\nprotected privacy rights, perhaps our bigger concerns should be with big business.\n336\n\n\x0c(https://news.harvard.edu/gazette/story/2017/08/when-it-comes-to-internet-privacy-be-veryafraid-analyst-suggests/)\nIn the internet era, consumers seem increasingly resigned to giving up fundamental\naspects of their privacy for convenience in using their phones and computers, and\nhave grudgingly accepted that being monitored by corporations and even\ngovernments is just a fact of modern life.\nIn fact, internet users in the United States have fewer privacy protections than those\nin other countries.\nGAZETTE: After whistleblower Edward Snowden\xe2\x80\x99s revelations concerning the\nNational Security Agency\xe2\x80\x99s (NSA) mass surveillance operation in 2013, how much\nhas the government landscape in this field changed?\nSCHNEIER: Snowden\xe2\x80\x99s revelations made people aware of what was happening,\nbut little changed as a result. The USA Freedom Act resulted in some minor\nchanges in one particular government data-collection program. The NSA\xe2\x80\x99s data\ncollection hasn\xe2\x80\x99t changed; the laws limiting what the NSA can do haven\xe2\x80\x99t changed;\nthe technology that permits them to do it hasn\xe2\x80\x99t changed. It\xe2\x80\x99s pretty much the same.\nGAZETTE: What about corporate surveillance? How pervasive is it?\nSCHNEIER: Surveillance is the business model of the internet. Everyone is under\nconstant surveillance by many companies, ranging from social networks like\nFacebook to cellphone providers. This data is collected, compiled, analyzed, and\nused to try to sell us stuff. Personalized advertising is how these companies make\nmoney, and is why so much of the internet is free to users. We\xe2\x80\x99re the product, not\nthe customer.\nGAZETTE: It seems that U.S. customers are resigned to the idea of giving up their\nprivacy in exchange for using Google and Facebook for free. What\xe2\x80\x99s your view on\nthis?\nSCHNEIER: The survey data is mixed. Consumers are concerned about their\nprivacy and don\xe2\x80\x99t like companies knowing their intimate secrets. But they feel\npowerless and are often resigned to the privacy invasions because they don\xe2\x80\x99t have\nany real choice. People need to own credit cards, carry cellphones, and have email\naddresses and social media accounts. That\xe2\x80\x99s what it takes to be a fully functioning\nhuman being in the early 21st century. This is why we need the government to step\nin.\nGAZETTE: You\xe2\x80\x99re one of the most well-known cybersecurity experts in the world.\nWhat do you do to protect your privacy online?\n\n337\n\n\x0cSCHNEIER: I don\xe2\x80\x99t have any secret techniques. I do the same things everyone else\ndoes, and I make the same tradeoffs that everybody else does. I bank online. I shop\nonline. I carry a cellphone, and it\xe2\x80\x99s always turned on. I use credit cards and have\nairline frequent flier accounts. Perhaps the weirdest thing about my internet\nbehavior is that I\xe2\x80\x99m not on any social media platforms. That might make me a freak,\nbut honestly, it\xe2\x80\x99s good for my productivity. In general, security experts aren\xe2\x80\x99t\nparanoid; we just have a better understanding of the trade-offs we\xe2\x80\x99re doing. Like\neverybody else, we regularly give up privacy for convenience. We just do it\nknowingly and consciously.\nGAZETTE: What else do you do to protect your privacy online? Do you use\nencryption for your email?\nSCHNEIER: I have come to the conclusion that email is fundamentally insecurable.\nIf I want to have a secure online conversation, I use an encrypted chat application\nlike Signal. By and large, email security is out of our control. For example, I don\xe2\x80\x99t\nuse Gmail because I don\xe2\x80\x99t want Google having all my email. But last time I\nchecked, Google has half of my email because you all use Gmail.\nGAZETTE: Is Google the \xe2\x80\x9cBig Brother?\xe2\x80\x9d\nSCHNEIER: \xe2\x80\x9cBig Brother\xe2\x80\x9d in the Orwellian sense meant big government. That\xe2\x80\x99s\nnot Google, and that\xe2\x80\x99s not even the NSA. What we have is many \xe2\x80\x9cLittle Brothers\xe2\x80\x9d:\nGoogle, Facebook, Verizon, etc. They have enormous amounts of data on\neverybody, and they want to monetize it. They don\xe2\x80\x99t want to respect your privacy.\n(This is not the entire interview which has been edited for length by the Author.)\n\nReferences:\nCommittee on Open Government. (n.d.). Retrieved July 28, 2018, from\nhttps://www.dos.ny.gov/coog/freedomfaq.html\nFindLaw\'s United States Supreme Court case and opinions. (n.d.). Retrieved July 28,\n2018, from https://caselaw.findlaw.com/us-supreme-court/410/113.html\nGriswold v. Connecticut. (n.d.). Retrieved July 28, 2018, from\nhttps://www.law.cornell.edu/supremecourt/text/381/479\nMineo, L. (2017, August 24). When it comes to internet privacy, be very afraid, analyst\nsuggests. Retrieved July 28, 2018, from\nhttps://news.harvard.edu/gazette/story/2017/08/when-it-comes-to-internet-privacy-bevery-afraid-analyst-suggests/\n\n338\n\n\x0cOffice for Civil Rights. (n.d.). Your Health Information Privacy Rights. Retrieved July\n28, 2018, from\nhttps://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/understanding/consumers/consu\nmer_rights.pdf\nPlanned Parenthood of Southeastern Pennsylvania v. Casey. (n.d.). Retrieved July 28,\n2018, from https://www.law.cornell.edu/supremecourt/text/505/833\nPogue, D. L., Clifford, E., & Schwartz, A. L. (2009). Understanding New York Law,\n2013-14. Upstate Legal Publishers\nProsser, W. J. (1960). Privacy. California Law Review, 48(3), 1-42. Retrieved July 28,\n2018, from\nhttps://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3157&context=californi\nalawreview.\nUSA Freedom Act Archives. (n.d.). Retrieved July 28, 2018, from\nhttps://judiciary.house.gov/issue/usa-freedom-act/\nWarren, S. D., & Brandeis, L. D. (1890). The Right to Privacy. Harvard Law Review,\n4(5), 193-220. Retrieved July 27, 2018, from\nhttps://www.jstor.org/stable/pdf/1321160.pdf?refreqid=excelsior:c94503ca104f06654246\nd39c944f72f1.\nWhat is the USA Patriot Web. (n.d.). Retrieved July 28, 2018, from\nhttps://www.justice.gov/archive/ll/highlights.htm\n\n339\n\n\x0c'