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mbe_46,"An ordinance of City makes it unlawful to park a motor vehicle on a City street within ten feet ofa fire hydrant. At 1:55 p.m. Parker, realizing he must be in Bank before it closed at 2:00 p.m., and finding no other space available, parked his automobile in front of a fire hydrant on a City street. Parker then hurried into the bank, leaving his aged neighbor, Ned, as a passenger in the rear seat of the car. About 5 minutes later, and while Parker was still in Bank, Driver was driving down the street. Driver swerved to avoid what he mistakenly thought was a hole in the street and sideswiped Parker's car. Parker's car was turned over on top of the hydrant, breaking the hydrant and causing a small flood of water. Parker's car was severely damaged and Ned was badly injured. There is no applicable guest statute.","If Ned asserts a claim against Parker, the most likely result is that Ned will",recover because Parker's action was negligence per se,recover because Parker's action was a continuing wrong which contributed to Ned's injuries,not recover because a reasonably Prudent person could not foresee injury to Ned as a result of Parker's action,not recover because a violation of a city ordinance does not give rise to a civil cause of action,C,"Appellant is not charged with any negligence which caused appellee to lose his balance and to jump from the car. We cannot hold that his injury was of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the grain door being where it was. It was highly improbable that an injury of such a character as that sustained by appellee would have resulted. It was an extraordinary *197 occurrence and would not reasonably have been foreseen or expected by a reasonably prudent person. It is not sufficient, under the law, that the accident happened and appellee was injured. While it is very unfortunate for appellee, yet we are not warranted by the law and the evidence in holding that appellant should compensate him for the injuries sustained. The judgment is reversed with a finding of facts.","Thus, the courts are charged with abstractly constructing and then evaluating the possible means of committing the offense to determine whether any such means is not sufficiently dangerous. This approach was applied in Howard , supra , 34 Cal.4th 1129, 23 Cal.Rptr.3d 306, 104 P.3d 107, the most recent case where our Supreme Court adjudicated whether a particular crime was inherently dangerous for purposes of second degree felony murder. Howard addressed whether ""driving with a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer,"" in violation of Vehicle Code section 2800.2, was an inherently dangerous felony. ( Howard , supra , at p. 1132, 23 Cal.Rptr.3d 306, 104 P.3d 107.) That felony certainly seems dangerous ordinarily : on the facts of Howard , the defendant fled pursuing officers in a sport utility vehicle at speeds of up to 90 miles per hour, running stop signs and a red light, and driving on the wrong side of a road, until he collided with another vehicle and killed the driver. ( Ibid . ) Indeed, the felony even appears dangerous by its terms, as it expressly requires as an element the ""willful or wanton disregard for the safety of persons or property."" ( Ibid. )","The statute, relating to the operation of a vehicle within a single lane, mandates, in pertinent part, that ""[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety."" § 316.089(1), Fla. Stat. (2018) (emphasis added). The failure to maintain a single lane alone cannot establish probable cause when the action is done safely. See Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002) (holding that traffic stop was unlawful where arresting officer's testimony failed to establish that defendant's failure to maintain single lane endangered defendant or any other traffic and there was no testimony that defendant was intoxicated or otherwise impaired nor driving erratically). Nevertheless, a stop for failure to maintain a single lane may be justified when the vehicle is being operated in an unusual manner. See Yanes v. State, 877 So.2d 25, 26-27 (Fla. 5th DCA 2004) (finding probable cause to support stop and concluding that where officer observes driver cross fog line on right side of road three times ""there was evidence that [driver] deviated from his lane by more than what was practicable,"" which was ""a violation of the statute, irrespective of whether anyone is endangered""); accord Williamson v. Dep't of High. Saf. & Motor Veh., 933 So.2d 665 (Fla. 1st DCA 2006) (holding that evidence supported officer's stop for failing to maintain single lane because record clearly established that defendant put other vehicle in danger whether or not other vehicle's driver knew it). Here, Deputy Payne's uncontradicted testimony was that Wilson drifted from his lane of traffic and an adjacent vehicle had to brake suddenly to avoid a collision. Hence, there was probable cause to stop Wilson's vehicle.","Likewise, we have considered the type of conduct that is ""wanton or reckless"" when operating a motor vehicle. See Hendricks, 452 Mass. at 104-106, 891 N.E.2d 209 ; Commonwealth v. DeSimone, 349 Mass. 770, 770-771, 211 N.E.2d 343 (1965) (defendant passing vehicle, weaving through traffic, following too closely, and again passing vehicle sufficient to constitute wanton or reckless conduct for manslaughter conviction); Commonwealth v. Moore, 92 Mass. App. Ct. 40, 45-46, 82 N.E.3d 1043 (2017) (wanton or reckless operation of vehicle where defendant led police on high-speed chase through busy city streets at rush hour and made no effort to slow down or steer away from intersection before collision that struck victim); Commonwealth v. Guaman, 90 Mass. App. Ct. 36, 41, 56 N.E.3d 830 (2016) (wanton or reckless operation of motor vehicle supported manslaughter conviction where defendant chose to drive after being visibly drunk and continued to drive after striking victim, hearing victim scream, and hearing witnesses yelling at defendant to stop). In these cases, ""a high degree of likelihood that substantial harm will result to another"" flowed from the intentional conduct. Earle, 458 Mass. at 347, 937 N.E.2d 42, quoting Welansky, 316 Mass. at 399, 55 N.E.2d 902.","While presence in a high-crime area alone is insufficient to justify a Terry stop, it can be considered as a factor in determining whether to stop an individual. Strange v. Commonwealth, 269 S.W.3d 847, 852 (Ky. 2008). Ward argues that there is nothing suspicious about being parked in a church parking lot, regardless of the time of day, but we disagree. Parking in a church lot, a private parking lot, at approximately 4:00 in the morning, in a high-crime area that residents recognize is a place where prostitution occurs, with a young female as your passenger, certainly constitutes suspicious behavior. One of the officers testified that upon seeing the vehicle's occupants, they immediately perceived S.R. to be a juvenile. The police officers were aware of all these factors as they approached the vehicle, before the seizure occurred and the ensuing investigatory stop was legally justified. The trial court was correct in finding the stop/seizure permissible and in declining to suppress either S.R.'s statement or the gun discovered upon Ward's arrest.","Section 442 B provides a good illustration of this principle. ""A negligently leaves an excavation in a public sidewalk, creating the risk that a traveler on the sidewalk will fall into it. B, passing C on the sidewalk, negligently bumps into him, and knocks him into the excavation. A is subject to liability to C."" 2 Restatement (Second), supra, § 442 B, illustration (5), p. 471. If, however, all of the facts are the same except that B intentionally pushes C into the hole, A would not be liable. Id., illustration (7), p. 471. This is true even though the injuries sustained by C in the second example are identical to the injuries sustained in the first. A is not liable in the second instance because the hazard that made A's conduct negligent did not include the risk that a third party would be induced to push someone into the excavated area. Cf. Stewart v. Federated Dept. Stores, Inc. , supra, 234 Conn. at 600-601, 612-13, 662 A.2d 753 (when department store negligently failed to provide adequate lighting and security in store parking garage located in high crime area, store may be held liable for murder of customer during botched robbery because risk that made store's conduct negligent was opportunity that it presented to criminals to commit such crimes); Doe v. Manheimer , supra, 212 Conn. at 750, 762, 563 A.2d 699 (private landowner was not liable for sexual assault that occurred behind overgrown vegetation on landowner's property because it was not reasonably foreseeable that such vegetation would provide incentive and shield for commission of such assault when ""there was no evidence tending to demonstrate that the [landowner] had had any past experience that might reasonably have led him to perceive and act on the atypical association between 'natural shields' such as overgrown vegetation and violent criminal activity""); Burns v. Gleason Plant Security, Inc. , 10 Conn. App.","This court, along with other Florida appellate courts, has refused to find a violation of this statute where a driver's failure to maintain a single lane did not endanger himself or herself or anyone else. See, e.g., Crooks, 710 So.2d at 1043 (explaining that a violation of section 316.089""does not occur in isolation, but requires evidence that the driver's conduct created a reasonable safety concern"" and thus reversing appellant's conviction where there was no evidence how far into the right-hand emergency lane appellant drove on three occasions and where there was no objective evidence that appellant failed to ascertain that his movements could be made with safety) ; Hurd, 958 So.2d at 603 (""[T]he failure to maintain a single lane alone cannot establish probable cause when the action is done safely.""). And while a driver's failure to maintain a single lane, coupled with a suspicion of impairment, unfitness, or vehicle defects, can give rise to probable cause for purposes of a traffic stop, there was no testimony that such circumstances existed in this case. Compare Jordan v. State, 831 So.2d 1241, 1243 (Fla. 5th DCA 2002) (holding that traffic stop was unlawful where officer's testimony established that no other vehicles were in danger due to appellant's failure to maintain single lane and where there was no testimony that appellant was intoxicated or otherwise impaired or that he had been driving erratically); with State v. Davidson, 744 So.2d 1180, 1181 (Fla. 2d DCA 1999) (concluding that deputy's observations of appellant maintaining low speeds and continually drifting across the line and jerking vehicle in opposite direction provided deputy with founded suspicion to conduct traffic stop where actions were consistent with those of an impaired driver), and Dep't of Highway Safety & Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992) (recognizing that ""a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior"").","The reasoning of Baldwin and similar cases is persuasive. In the specific context of a traffic stop, the brief stop of a car in response to emergency lights, followed by the flight of the vehicle before an officer is able to approach and talk to the driver, does not objectively demonstrate submission to the officer's show of authority. It is more accurately viewed as an attempted seizure thwarted by the flight of the vehicle before the officer can speak to the driver. See Brendlin , 551 U.S. at 254, 127 S.Ct. 2400 (""there is no seizure without actual submission; otherwise, there is at most an attempted seizure""). The use of emergency lights to stop a moving vehicle would be understood by a reasonable person in Defendant's circumstance to convey not only a directive to stop the vehicle, but also to stay and submit to the officer's inquiries. ""Submission under Hodari D. requires, at a minimum, that a suspect manifest compliance with police orders."" United States v. Mosley, 743 F.3d 1317, 1326 (10th Cir. 2014) (citation omitted). The question of whether the person has submitted is an objective one that is examined from the view of a reasonable law enforcement officer under the circumstances. Id. at 1325. Stopping a vehicle and then fleeing before the officer approaches is the opposite of submission. Rather, it would indicate to a reasonable officer that the person has only halted temporarily to gain an advantage in flight and is not willing to comply with the show of authority insofar as it directs the driver to submit to a police inquiry. Absent submission to that directive - even if only briefly - the driver cannot reasonably be considered to have been seized under the Hodari test. See also United States v. Washington , 12 F.3d 1128, 1132 (D.C. Cir. 1994) (driver who drove off as officer was approaching ""did not in fact submit to the officer's order."")","{19} That is to say, the circumstances of Officer Adegite's approach-on foot-toward Defendant's vehicle as it was idling in the parking lot, followed by a tap on the window as it started pulling away, appear to be more akin to an encounter with a pedestrian or with the occupant of a parked car than to a typical traffic stop. See United States v. Adegbite , 846 F.2d 834, 838 (2d Cir. 1988) (holding that where a vehicle ""had barely started [driving] in a parking lot, moved only fifteen to twenty yards, and was waved to a halt by DEA agents on foot,"" the situation was ""more analogous to the cases of pedestrians and parked cars to which the Mendenhall seizure test is applied[,]"" and recognizing that the ""normal circumstances of a vehicle stop,"" which ""generally involve abundant displays of authority, including police uniforms, sirens and flashing lights, and signals to pull off the highway[,]"" were not present). Given the conspicuous absence of the typical displays of authority attendant to a traffic stop-sirens, flashing lights, signals to pull off the highway-we decline to treat this case as one involving a typical traffic stop.","Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), a rational trier of fact could have found the following facts. The defendant was part of an unruly crowd of loud, agitated, and intoxicated individuals who were on the street, obstructing traffic, at 2 A . M . Multiple police officers, including Boston police Officer Edwin Lopez, formed a police line and commanded the crowd to move out of the street. Although the defendant initially moved backwards, thereafter he rapidly approached the officers in an aggressive manner as Lopez assisted another officer who was arresting a different individual. As Lopez turned toward the direction from which a punch to his face had come, he saw the defendant nearby, being grabbed by the other officer. This evidence was sufficient to permit a trier of fact to conclude beyond a reasonable doubt that the defendant's conduct was disorderly. See, e.g., Marcavage, 76 Mass. App. Ct. at 38 ; Commonwealth v. Sinai, 47 Mass. App. Ct. 544, 548-549 (1999). Furthermore, this same evidence is sufficient to permit a trier of fact reasonably to find beyond a reasonable doubt that the defendant consciously disregarded a substantial and unjustifiable risk of public inconvenience, annoyance, or alarm. See Feigenbaum, 404 Mass. at 474-475.","In the case of DUII under Oregon law, the threshold for probable cause is relatively low. Doyle v. City of Medford , Civ. No. 1:16-cv-01376-MC, 2017 WL 3784038, at *6 (D. Or. Aug. 31, 2017), aff'd 742 F. App'x 342 (9th Cir. 2018). ""A person is under the influence of an intoxicating liquor, controlled substance, or inhalant when the person's physical or mental faculties are adversely affected to a noticeable or perceptible degree."" State v. Miller , 265 Or. App. 442, 445, 335 P.3d 355 (2014). In State v. Gilmour , 136 Or. App. 294, 901 P.2d 894 (1995), the Oregon Court of Appeals held that probable cause to arrest existed when the defendant committed a traffic infraction after leaving a tavern parking lot at 2:00 a.m. and, during the stop that followed, the officer observed bloodshot, watery eyes and smelled the strong odor of alcohol coming from the vehicle. Id. at 298-300, 901 P.2d 894. The Oregon Court of Appeals held that probable cause existed even though the defendant did not slur his speech or exhibit difficulty producing his driver's license. Id. at 300, 901 P.2d 894.","When assessing Ned’s potential claim against Parker, key principles from the provided passages are pertinent:

1. **Negligence Per Se**: The concept of negligence per se arises from the breach of a statute intended to protect a particular class of individuals from a specific type of harm. The violation of a statutory duty can be considered inherently dangerous and lead to a finding of negligence per se. (Passages 1 and 3)

2. **Foreseeability and Proximate Cause**: For liability in negligence, a defendant’s actions must have foreseeably caused the plaintiff's injuries. This means evaluating whether the harm was a direct consequence of the defendant's negligent action, bearing in mind the 'scope of risk' created by the conduct. (Passage 6 addresses foreseeability and proximate cause, demonstrating how liability can be influenced by whether the specific type of risk leading to injury was foreseeable.)

3. **Traffic Law Violations**: Cases involving minor traffic violations emphasize that a breach alone does not necessarily constitute negligence unless it endangers others. (Passages 2 and 6 highlight this concept, noting that failure to maintain a single lane or similar infractions only result in liability when they create a reasonable safety concern or endanger others.)

These principles can be leveraged to evaluate whether Parker’s parking violation and its role in the accident foreseeably contributed to Ned's injuries and if such placement constitutes negligence per se under the city ordinance.","¬∂ 25 The majority concludes that, because Ramirez parked within 15 feet of a fire hydrant in violation of a municipal ordinance, she was not lawfully parked. Citing Curatola , the majority finds that the City's duty to pedestrians who walk on the street around their parked cars extends only to those entering or exiting a legally parked vehicle. Curatola , however, simply states that because the plaintiff was lawfully parked he was thus ""a permitted user of the street."" Curatola , 154 Ill. 2d at 215, 181 Ill.Dec. 631, 608 N.E.2d 882. The court did not find that only pedestrians entering or exiting legally parked cars are permitted users. Our supreme court in Curatola had no occasion to consider the issue we have here: whether a pedestrian who was injured getting to her car by a defect located completely within an area permitted for parking is an intended and permitted user of the street, even though a portion of her parked car extended into a no-parking zone.","¬∂ 4 Subsequently, the City moved for summary judgment, contending that the City did not owe Ramirez a duty of care because she was neither an intended nor permitted user of the street when she encountered the pothole. The City asserted that the scope of a municipality's duty to maintain its property is limited by the Local Governmental and Governmental Employees Tort Immunity Act (Act) ( 745 ILCS 10/3-102(a) (West 2014) ), which states that a plaintiff must be a legally intended and permitted user of the property before liability is imposed. The City asserted that the threshold inquiry in determining whether Ramirez was an intended and permitted user of the street was whether her car was illegally parked. The City maintained that Ramirez was illegally parked under a state law that prohibited parking within 15 feet of a fire hydrant. The City stated that Ramirez's car was 15 feet, 9 inches, long and approximately 5 feet, 9 inches, of her car was within a 15-foot, yellow-painted no-parking zone. As a result, the City did not owe a duty to Ramirez. The City requested that the court dismiss the case in its entirety with prejudice.","¬∂ 7 The City filed a motion to reconsider, noting that it had an ordinance that mirrored the state law that prohibited parking within 15 feet of a fire hydrant. The City also discussed two additional cases. In the first case, Montano v. City of Chicago , 308 Ill. App. 3d 618, 242 Ill.Dec. 7, 720 N.E.2d 628 (1999), no duty was owed to a plaintiff who violated a municipal ordinance. In the second case, Greene v. City of Chicago , 209 Ill. App. 3d 311, 153 Ill.Dec. 899, 567 N.E.2d 1357 (1991), the court rejected the plaintiff's argument that the City owed him a duty because the subject pothole was located in an area of the street where legal parking was permitted. At the hearing on the motion to reconsider, plaintiffs' counsel conceded that Ramirez's car was illegally parked.","¬∂ 14 Ramirez concedes that she was parked illegally-she was parked within 15 feet of a fire hydrant. See Chicago Municipal Code ¬ß 9-64-100(a) (amended May 28, 2014). Still, Ramirez urges this court to overlook her illegal parking spot, contending that, when she fell, she was entirely within the legal parking span of the street and the pothole was entirely confined to the parking-permitted section of the street. Ramirez argues that she was an intended user because she was using an appropriate section of the street for an appropriate purpose. According to Ramirez, the location of the subject defect should control the outcome.",c. Mississippi Law on the Premises Owner's Duty To Protect Patrons From Negligently Operated Vehicles,"¬∂ 17 More generally, that plaintiff violated an ordinance precludes her from being an intended and permitted user of the street area where she fell. See Torres , 218 Ill. App. 3d at 93, 161 Ill.Dec. 31, 578 N.E.2d 158 (""it would be inconceivable to find that a plaintiff injured while engaging in behavior in violation of a municipal ordinance is an intended and permitted user of the street""). We find Montano instructive on this issue. There, the plaintiff parked his truck in an alley, and when he stepped off, he twisted his foot on uneven pavement and fell down. Montano , 308 Ill. App. 3d at 620, 242 Ill.Dec. 7, 720 N.E.2d 628. The court found that the plaintiff was not an intended user of the alley because, at the time he was injured, he was violating an ordinance that required vehicles to leave at least 10 feet unobstructed while parked in an alley. Id. at 624, 242 Ill.Dec. 7, 720 N.E.2d 628. Ramirez points out that the Montano court went on to discuss another reason why the plaintiff was not an intended user of the alley, but the violation of the ordinance stood as an independent basis for the outcome. See id. at 625, 242 Ill.Dec. 7, 720 N.E.2d 628 (""We also hold that, even if Montano did not violate [the ordinance], he would not be an intended user of the alley.""). In another decision, Prokes , 208 Ill. App. 3d at 749-50, 153 Ill.Dec. 634, 567 N.E.2d 592, the court found that the adult plaintiff was not an intended and permitted user of a sidewalk because at the time he was injured, the plaintiff was violating an ordinance that prohibited bicycle riding by adults on sidewalks. At the same time, we note that violating an ordinance does not automatically preclude a plaintiff from being an intended and permitted user of a given property. For example, in Bowman v. Chicago Park District , 2014 IL App (1st) 132122, 385 Ill.Dec. 517, 19 N.E.3d 75, notwithstanding an ordinance providing for a 12-year-old age limit for playground equipment, a 13-year-old was an intended user of a slide. In that case, there was nothing that showed that adults, let alone children, had any way of knowing that the park district had designated the park for a particular age group or that the subject slide was designed for children under age 12. Id. ¬∂ 56. Further, there was no authority for charging a child with responsibility of knowing municipal ordinances. Id. ¬∂ 63. Those circumstances do not exist here, where Ramirez has conceded she was illegally parked.","¬∂ 2 The record reveals that on the evening of April 23, 2015, Ramirez went to her parents' home at 2856 North Mason Avenue in Chicago to drop her daughter off to spend the night. Ramirez parked her car, a 2011 Mitsubishi Endeavor, on Mason, slightly south and on the same side of the street as her parents' home. The passenger side of the car abutted the curb. As she left her parents' home, Ramirez walked toward the front of the car and stepped off the curb with her left foot, whereupon her left ankle twisted and she fell into a pothole. According to a claims investigator with the City, the pothole was approximately five feet long. It is undisputed that Ramirez's car had extended into a yellow-painted area indicating a no-parking zone due to a fire hydrant. However, part of Ramirez's car and the pothole itself were within an area where it was legal to park.","Moreover, finders of fact may-when using their common sense and common experience and applying the standards and behavioral norms of the community-infer from the evidence that automobiles could simultaneously be parked in the northern access drive and in the right-angle parking spots farther to the north. Finders of fact may also reasonably infer from the evidence that an automobile would back out from one of the right-angle parking spots and collide with an automobile parked in the northern access drive, perhaps owing, in part, to the need for drivers to sharply turn their vehicles when backing out of those parking spots. We note the district court focused on the very narrow fact pattern present in this case, that being the foreseeability that a person's foot would slip off the brake pedal and inadvertently hit the gas pedal, resulting in the collision. We find that such a fact-specific analysis is not necessary in assessing the question at hand and find that a reasonable person could conclude that it was foreseeable to Hy-Vee that a vehicle could be operated in such a manner as to fail to observe a person such as Sundermann utilizing the air compressor in the access drive area, resulting in a collision and injury. Reasonable minds may differ in their assessment of foreseeable risk at the time of Hy-Vee's alleged negligence-which is to say that material questions of fact surround whether Hy-Vee exercised appropriate care or breached its duty of care to Sundermann. We find that Sundermann proffered sufficient evidence to engender questions of material fact that must be resolved by a trier of fact. Thus, summary judgment was inappropriate in this matter. We therefore reverse the judgment of the district court and remand the matter for further proceedings.","Moreover, even if the trial court erred in refusing to instruct the jury that Aldana was negligent for driving into the gore point, the error was harmless in light of the jury's verdict. Under Evidence Code section 669, subdivision (b), the presumption of negligence codified in Evidence Code section 669, subdivision (a), may be rebutted by proof that ""[t]he person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law."" The jury was instructed that ""[n]egligence is the failure to use reasonable care to prevent harm to oneself or others"" and that ""[a] person is negligent if he or she does something that a reasonably careful person would not do in the same situation, or fails to do something that a reasonably careful person would do in the same situation."" Having been so instructed the jury found Aldana not negligent in parking in the gore point. In light of the jury's finding, it is not reasonably probable the jury would have found Aldana violated section 21651 because he drove into the gore point to park there. Accordingly, the trial court did not prejudicially err in refusing to instruct the jury that Aldana could be found negligent for driving into the gore point. (See Spriesterbach v. Holland (2013) 215 Cal.App.4th 255, 268, 155 Cal.Rptr.3d 306 [trial court's failure to give a negligence per se instruction based on driver's failure to yield in violation of section 21804 not prejudicial where jury returned special verdict that defendant was not negligent].) III","DeMambro v. City of Springfield , 2013 IL App (4th) 120957, ¬∂ 25, 371 Ill.Dec. 877, 990 N.E.2d 1255. Further, unless otherwise indicated, the area near the curb is intended for parked vehicles and pedestrians who are accessing their vehicles. Id. Ramirez seeks to qualify as the latter, but we cannot overlook that she was near the curb to access her illegally parked car. Our cases indicate that a pedestrian near the curb to access her car is an intended user only if the car is legally parked. See Curatola , 154 Ill. 2d at 213, 181 Ill.Dec. 631, 608 N.E.2d 882 (""[t]he narrow exception * * * concerns only the permitted and intended use of the street immediately around a legally parked vehicle""); DeMambro , 2013 IL App (4th) 120957, ¬∂ 25, 371 Ill.Dec. 877, 990 N.E.2d 1255 (""plaintiff was clearly intended to be in the area around her vehicle, which, as the City concedes, was lawfully parked near the curb""); Grove v. City of Park Ridge , 240 Ill. App. 3d 659, 661-62, 181 Ill.Dec. 348, 608 N.E.2d 421 (1992) (municipality's duty extends ""only to those pedestrians walking to or from the curb area, going to or from a legally parked vehicle""); Di Domenico v. Village of Romeoville , 171 Ill. App. 3d 293, 296, 121 Ill.Dec. 436, 525 N.E.2d 242 (1988) (in finding that municipality owed duty to a plaintiff who was injured while walking to his car, noting that the plaintiff ""legally parked in a location used for such purpose""). Further underscoring that a plaintiff must park legally, in Curatola , 154 Ill. 2d at 212, 181 Ill.Dec. 631, 608 N.E.2d 882, the court criticized another decision, Vlahos v. City of Chicago , 198 Ill. App. 3d 911, 145 Ill.Dec. 42, 556 N.E.2d 660 (1990), because it did not recognize that the plaintiff there was illegally parked, which should have been a salient fact in determining that the plaintiff was not an intended and permitted user of the street. Though none of these cases expressly considered the scenario of an illegally parked vehicle, the cases instruct that a plaintiff must be legally parked to be an intended and permitted user of the street area around her vehicle.","The provided passages discuss legal principles surrounding the violation of municipal ordinances and the associated implications for liability and duty of care. Key principles include:

1. **Negligence Per Se and Ordinance Violation**: A violation of a municipal ordinance, such as parking within a designated no-parking zone (e.g., near a fire hydrant), can be considered negligence per se. This means that if someone is injured because of the violation, the violator can be presumed negligent (¶14, ¶17).

2. **Permitted and Intended Users**: A plaintiff injured while violating an ordinance is generally not considered an ""intended and permitted user"" of public property, thereby limiting the duty owed to them by the city or other entities (¶17, ¶25). For example, if a car is illegally parked, the occupant or driver is not deemed a permitted user of the street or sidewalk area around that car, affecting their right to claim for injuries related to the location (¶25).

3. **Duty of Care**: Municipalities are typically not liable for injuries to individuals who are not intended or permitted users of an area due to the violations of ordinances. The duty to maintain safe public properties does not generally extend to those who are violating laws or ordinances (¶4, ¶7).

4. **Proximate Cause and Foreseeability**: The application of negligence per se and the determination of duty also hinge on proximate cause and foreseeability. A party's violation of an ordinance must be shown to be a direct cause of the injury, and the injury must be a foreseeable result of the violation (implicit throughout the passages).

Overall, the passages underscore that violating a municipal ordinance, such as prohibitions against parking near a fire hydrant, can preclude claims of being a permitted user and establish negligence per se, impacting the outcome of personal injury claims associated with such violations.","The passage discusses the concept of foreseeability in negligence cases. It indicates that for a defendant to be liable, the injury must be of a type that an ordinarily prudent person could have foreseen as a probable result of the defendant's actions. The court ruled that an extraordinary and highly improbable event, such as the one described, could not be reasonably anticipated, thus absolving the defendant of liability. This principle suggests that unforeseeable and extraordinary occurrences do not typically result in a finding of negligence."
mbe_132,,"Patty sues Mart Department Store forpersonal injuries, alleging that while shopping she was knocked to the floor by a merchandise cart being pushed by Handy, a stock clerk, and that as a consequence her back was injured. Handy testified that Patty fell near the cartbut was not struck by it. Thirty minutes after Patty's fall, Handy, in accordance with regular practice at Mart, had filled out a printed form, ""Employee's Report of Accident-Mart Department Store."" in which he stated that Patty had been leaning over to spank her young child and in so doing had fallen near his cart. Counsel for Mart offers in evidence the report, which had been given him by Handy's supervisor. The judges should rule the report offered by Mart",admissible as res gestae,admissible as a business record,"inadmissible, because it is hearsay, not within any exception","inadmissible, because Handy is available as a witness",C,"Hearsay is an out of court, unsworn, oral or written statement by a third person, which is offered for the truth of its content. Hearsay statements are inadmissible unless they fit into one of the recognized exceptions.‚Äù **6 State v. Gremillion, 542 So.2d 1074, 1077 (La.1989) (citation omitted). One such exception to the hearsay exclusionary rule applies to unavailable witnesses: A. Definition of unavailability. Except as otherwise provided by this Code, a declarant is ‚Äúunavailable as a witness‚Äù when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant: .... (2) Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; .... B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: .... (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. La.Code Evid. art. 804.","The matter was tried in Wake County Superior Court before the Honorable Richard A. Baddour, Jr., beginning on 8 August 2017. The evidence at trial tended to show that plaintiff and a friend went into the store on 14 September 2013 to purchase a card. While in the store, plaintiff slipped and was caught by her friend before she fell to the ground. Plaintiff reported the incident to an employee who called for a manager. An assistant store manager responded and had plaintiff fill out a customer statement. Plaintiff reported on the customer statement that there was something greasy along with food particles on the floor where she slipped. Plaintiff stated that her right ankle and right hip were sore. Plaintiff did not seek medical treatment that day. Although plaintiff recalled that the assistant manager told her the incident would be on camera, the assistant manager and an asset protection manager testified there was no surveillance of the area where the incident took place and there was no video of the incident.","In Handy, the plaintiff had visited a building materials retail store on a Saturday, when it was open, to look at countertops for a home-improvement project. A store employee told her that there was a display of countertops on the outside of the store's entrance. The plaintiff looked at those countertops, took some rough measurements, and then returned to the store the following day to look at the countertops again and measure them more precisely. At the time of the plaintiff's return visit, the store was closed, but the countertops remained outside, and as the plaintiff moved around some countertops to better view them, they fell on her and injured her foot. The trial court granted summary judgment to the store on the ground that the plaintiff was a trespasser and the store did nothing to willfully or wantonly expose her to danger.","In Bolick , a customer asked to use a store's bathroom. 150 N.C. App. at 428-29, 562 S.E.2d at 603. A store employee directed the customer to several steps leading to a slightly raised bathroom door. Id. The customer successfully traversed the stairs, which were lit by several light sources, and used the bathroom. Id. at 429, 562 S.E.2d at 603. When she exited, the customer fell down the stairs and injured herself; she later filed suit, averring that the step-down from the bathroom door constituted a hazardous condition. Id. On these facts, we held that summary judgment for the defendant store was proper, as ""plaintiff had full knowledge of the condition of the doorway to the bathroom by virtue of having safely negotiated her way inside the bathroom moments before she fell."" Id. at 431, 562 S.E.2d at 604.","¶3. Edwards described the accident in her deposition. She testified that, while shopping at Wal-Mart with family members, she squatted down to look at baby food on a low shelf, and a cart struck her in the right hip, causing her to fall. When she righted herself and attempted to stand, the cart struck her a second time, also in the right hip. She testified that she had not seen the cart prior to the accident. Edwards testified that she felt pain in her hip immediately, and the pain spread to her lower back. She testified that Lee had been wearing earbuds and had failed to notice that he had struck someone with his cart. She said that the accident had caused injuries to her middle and lower back. Edwards visited an emergency room after leaving Wal-Mart.","There, a store clerk inadvertently struck a customer with her hand. Id. at 648-49. After arriving at the scene, an officer arrested the store clerk for assault. Id. at 649. The officer relied solely on the customer's account of events and refused to believe the store clerk's version, even though he observed a sizeable bruise over her left eye. Id. at 651. The officer also ignored a witness's efforts to retract her statement that the store clerk slapped the customer, and he also failed to interview other witnesses who saw the entire altercation and thoroughly question both the store clerk and the customer. Id.","The plaintiff in Woolworth fell while shopping at the defendant's store. 125 F.2d at 97. She sued, alleging the store's defective condition-the result of ""wear and decay""-caused her fall. Id. at 97, 98. At trial, a witness who had seen the floor testified about its condition. Id. at 97-98. But the witness saw the floor forty-five days after the accident. Id. Thus, one of the issues on appeal was whether this witness's testimony was admissible. Id. at 97.","In Carpenter v. Stop-N-Go Markets of Georgia, Inc. , the Mississippi Supreme Court addressed a matter of first impression in the state: ""whether the owner of a convenience store has a duty, to customers inside the store, to erect some sort of barrier or wheel stop in order to prevent vehicles from crashing through a plate glass window."" 512 So. 2d 708, 709 (Miss. 1987). The plaintiff in that case, Carpenter, had been shopping in a Stop-N-Go convenience store in Jackson, Mississippi when an automobile drove through the front plate glass window of the store, pushing over a display counter, which knocked Carpenter to the floor. The automobile was driven by an underage boy attempting to steal it from the store's parking lot. Carpenter sued Stop-N-Go, alleging Stop-N-Go was negligent ""in failing to install posts or wheel stops in front of its stores so as to prevent an accident such as the one in which he was injured."" Id. It was revealed through discovery that a vehicle had previously struck and damaged the front of the store on a prior occasion; the trial court granted summary judgment to Stop-N-Go notwithstanding.","This case falls much closer to Miller and Smith than it does to Couvillion . In particular, the Miller plaintiff acknowledged and appreciated that some snow had fallen and that it could be slick. She failed to appreciate, however, just how slick the sidewalk had become. Here, notwithstanding the ""bird's nest"" of flashing, nothing compels the conclusion that Mr. Gannon should have been aware of just how precarious the flashing was stored such that it could fall by being bumped. Tripping or catching an air hose on an obstruction such as a pallet will almost always produce the result in Couvillion , where the plaintiff fell and injured herself. In contrast, a reasonable jury may well conclude that Mr. Gannon did not fail to protect himself in reaching into the flashing shelf and lightly bumping a piece of flashing. In fact, the jury may conclude that the reason the flashing fell was not because Mr. Gannon failed to protect himself, but because the flashing was stored and displayed in an unsafe manner. Summary judgment is therefore inappropriate in this case.","Johnson next offers State v. Frunza , No. 82053, 2003 WL 22100144 (Ohio Ct. App. Sept. 11, 2003), as putative support. Johnson claims that Frunza supports the proposition that a conviction under the relevant statute here ""was satisfied when a defendant pushed her stroller against a store employee and pulled her hair."" Putting aside whether pulling someone's hair would suffice, that is simply a mischaracterization of the case. The Ohio court held that pushing a stroller against a store employee would not suffice. Id. at *2. Rather, the court upheld the defendant's conviction because her behavior later escalated when she attempted ""to push past [the store employee] to get out the door, and ... she struck [the employee] and pulled [the employee's] hair while being detained."" Id. Johnson's reliance on Frunza , therefore, falls flat. Johnson offers no further evidence that Ohio courts permit convictions under ORC § 2911.02(A)(2) without a use of violent force, and we are likewise unable to find any such cases.","Likewise, in Persley , the court of appeals reversed the trial court and held that there was no evidence of negligent activity when the plaintiff slipped and fell by stepping in water that was allegedly dripped onto the floor when a store employee transported frozen food from pallets to the frozen food cases. See Persley , 261 S.W.3d at 320-21. The court noted that there was no ongoing activity in the area where the plaintiff fell at the time the fall occurred and that the plaintiff fell at least fifteen minutes after the employee left the area; thus there was no connection between the injury and the stocking of the frozen foods section that would lead to a conclusion that the plaintiff's injury occurred as a contemporaneous result of a negligent activity. Id. at 320-21.","The various passages do not provide direct relevance to the admissibility of the ""Employee's Report of Accident"" in Patty's lawsuit against Mart Department Store. The passages deal more so with issues regarding premises liability, negligence, and summary judgment in distinct factual situations. However, for the legal question at hand, the key legal principles involve analyzing whether the report might be admissible under certain exceptions to hearsay, specifically as a business record or under the res gestae doctrine.

In summary:
- The report created by Handy could be analyzed under the business records exception to hearsay. This rule generally allows records kept in the regular course of business to be admissible, provided certain conditions are met, such as the record being made at or near the time of the event by someone with knowledge.
- The res gestae principle traditionally allows for the admissibility of statements made spontaneously or contemporaneously with the occurrence of an event, reflecting the event's immediate circumstances.

Ultimately, the report's admissibility may hinge on whether it satisfies the criteria of these exceptions. The admissibility of business records requires regularity and timeliness, while res gestae focuses on spontaneity and the contemporaneous nature of the statement. Additionally, the presence of Handy as a witness could affect the need for his written report as evidence.","¶3. Edwards described the accident in her deposition. She testified that, while shopping at Wal-Mart with family members, she squatted down to look at baby food on a low shelf, and a cart struck her in the right hip, causing her to fall. When she righted herself and attempted to stand, the cart struck her a second time, also in the right hip. She testified that she had not seen the cart prior to the accident. Edwards testified that she felt pain in her hip immediately, and the pain spread to her lower back. She testified that Lee had been wearing earbuds and had failed to notice that he had struck someone with his cart. She said that the accident had caused injuries to her middle and lower back. Edwards visited an emergency room after leaving Wal-Mart.",(4) The trial court erred in failing to apply an exception to the hearsay rule which allows plaintiff and another eye witness to testify as to what an employee said at the time of the incident.,"While pushing a shopping cart in the ladies' department at Wal-Mart, plaintiff ""brushed"" a clothing display rack that started to fall. The rack struck Rodriguez's right elbow and hand, and she used her elbow and hand to prevent the rack from pushing her to the ground. One of plaintiff's children, customers, and the store manager lifted the rack off of plaintiff.","Defendants having focused their argument on relevance, and the Court having concluded that Doss's presumed witness statement may well have been relevant to Plaintiff's proofs, the Court will impose a related adverse jury instruction ""should this case go to trial[.]"" (DE 32 at 27 ¶ 1.) See , e.g. , Patel v. Havana Bar, Rest. & Catering , No. CIV.A. 10-1383, 2011 WL 6019218, at *1 (E.D. Pa. Dec. 5, 2011) (""An adverse inference instruction regarding the spoliation of the 2008 witness statements will be given at trial[.]""); Patel v. Havana Bar, Rest. & Catering , No. CIV.A. 10-1383, 2011 WL 6029983, at *10 (E.D. Pa. Dec. 5, 2011) (applying adverse inference factors to the spoliation of witness statements). Specifically, in light of the Court's extreme displeasure with the inexplicable disappearance of a crucial witness statement given in the immediate aftermath of the event - especially considering the witness's own unequivocal testimony that she gave such a statement, taken together with Wal-Mart's own internal requirements to ""search for and preserve any and all information related to this incident"" (DE 32-2 at 13-14) and its failure to preserve the other evidence discussed in this opinion - the Court infers a culpable state of mind and will instruct the jury that it must presume the information contained in Ms. Doss's statement was unfavorable to Defendant Wal-Mart.","As a preliminary matter, the court addresses plaintiffs' motion to strike the affidavit of Sheriff Roger Scott. Plaintiffs state in their motion defendant Scott's affidavit contains inadmissible hearsay. For summary judgment, Federal Rule of Civil Procedure provides: ""An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated."" FED. R. CIV. P. 56(c)(4). Here, defendant Scott averred in his affidavit he has personal knowledge of information contained in investigation reports from his office involving patrol deputies and patrol supervisors identified by plaintiffs as comparators in support of their claims. In their motion, plaintiffs provide a conclusory argument, with no factual or legal basis, to support their position that defendant Scott's affidavit contains inadmissible hearsay and should be disregarded by the court. For their part, defendants argue in response the affidavit is based on personal knowledge and is a review of the DeKalb County Sheriff's Office records of plaintiffs' identified comparators. Defendants also point out the records attached to the affidavit (which provide the basis for defendant Scott's personal knowledge) are records not objected to by plaintiffs and which may be admissible under Federal Rule of Evidence 803(6) (a record ""kept in the course of a regularly conducted activity of a business, organization...""). ""[A]ffidavits...'constituted appropriate summary judgment evidence adequate to support a grant of summary judgment given that those affidavits were sworn to by employees...who were familiar with its record-keeping practices and therefore were qualified to speak from personal knowledge that the documents attached to the affidavits are admissible business records.' "" Thanongsinh v. Board of Education , 462 F.3d 762, 777 (7th Cir. 2006) (citing F.D.I.C. v. Patel , 46 F.3d 482, 484 (5th Cir. 1995) ). Additionally, defendants argue defendant Scott's testimony concerning the reports of the comparators are not offered for the truth of the underlying facts contained in the reports, but to show how defendant Scott reacted in those incidents as compared to his reaction to plaintiffs' incident. See Woods v. City of Chicago 234 F.3d 979, 986-988 (7th Cir. 2000) (arrest report and misdemeanor complaint not inadmissible hearsay at summary judgment stage because information was not offered for the truth but to show the effect the information had on the officers; district court properly found documents admissible as business records). The court finds defendant Scott's affidavit to be based on personal knowledge and supported by admissible records of comparators identified by plaintiffs (not offered for the truth but to show the effect they had on defendant Scott's decisions) and not objected to by plaintiffs. Therefore, plaintiffs' motion to strike affidavit of Sheriff Roger Scott is denied.","Rule 37(e)(2)'s Advisory Committee Notes explain that it ""does not include a requirement that the court find prejudice to the party deprived of the information [unlike Subsection 37(e)(1) ][,]"" but also explain that ""[f]inding an intent to deprive another party of the lost information's use in the litigation does not require a court to adopt any of the measures listed in subdivision (e)(2)."" Finally, the Advisory Committee Notes provide that ""[c]ourts should consider the extent to which a party was on notice that litigation was likely and that the information would be relevant."" Fed. R. Civ. P. 37(e), Advisory Comm. Note., 2015 Amendment. Taking all of this into consideration, in light of the factual record, the Court concludes that Plaintiff is entitled to part of the relief sought - ""an adverse jury instruction against Defendants"" regarding the exterior video evidence. (DE 32 at 27 ¶ 1.) First, as early as the October 27, 2016 occurrence, Defendants had at least some notice that ""litigation was reasonably likely."" (DE 32 ¶ 15.) Second, although Plaintiff's June 24, 2015 Customer Accident Investigation policy does not create a legal duty, it does provide evidence of Wal-Mart's established method for ""gathering details"" when an accident has occurred, including taking ""photographs,"" ""obtain[ing] video,"" and ""fil[ing] documentation."" (See DE 32-4, DE 32 ¶¶ 7, 10.) It also demonstrates that Wal-Mart employees had notice as to the importance of preserving these items. Therefore, it is fair to say that Wal-Mart employees knew to act in accordance with a policy that appears to have existed for more than a year prior to the October 27, 2016 incident at issue in this lawsuit and had notice as to the importance of preserving this particular video evidence when an accident occurs on Wal-Mart property. This is the context in which Terry made his choice to preserve some but not all pertinent video evidence. Third, the claim form dated October 28, 2016 begins by stating that: ""You must immediately search for and preserve any and all information and evidence related to this incident. Please follow the guidelines on the Evidence Collection Sheet and Document Preservation Directive."" (DE 32-2 at 13-14 (emphasis added).) This was obviously not done, despite notice to the employees that it should be done. Fourth, at his May 15, 2018 deposition, Terry testified, agreed or stated that:","In this matter, the judgment at issue does not indicate which legal standard the trial court used for its finding. However, after review of the pertinent jurisprudence, we conclude that this is a ""falling merchandise"" case. To prevail in a falling merchandise case under La. R.S. 9:2800.6(A), the standard is that the merchant must use reasonable care to keep its aisles, passageways and floors in a reasonably safe condition and free of hazards which may cause injury. Hodges v. J.C. Penney Corp. Inc. , 04-1333 (La. App. 5 Cir. 3/29/05), 900 So.2d 966, 968. Additionally, a plaintiff who is injured by falling merchandise must prove, even by circumstantial evidence, that a premise hazard existed. Id. Once a plaintiff proves a prima facie premise hazard, the defendant has the burden to exculpate itself from fault by showing that it used reasonable care to avoid such hazards by specified means, i.e. , periodic clean up and inspection procedures. Id.","¶18. This test from Pierce has been applied in numerous cases involving sanctions for discovery violations. In Scoggins v. Ellzey Beverages, Inc. , 743 So.2d 990 (Miss. 1999), this Court applied the test in affirming a dismissal for discovery violations similar to those at issue in this case. Scoggins filed a complaint alleging that she was in a grocery store when an employee struck her with a loaded dolly, injuring her foot, leg, and back. Id. at 991. In interrogatories, Scoggins was asked about prior injuries to the areas she claimed had been hurt in the accident. Id. She responded by saying that she never had injured any of the same areas but that she had a pinched nerve in her back in 1958 and had completely recovered. Id. She also denied having been prescribed Xanax before the accident. Id. at 992. Later, in her deposition, the defendants repeatedly questioned Scoggins about whether she had sustained prior foot, leg, or back injuries. Id. at 991. Other than the pinched nerve, Scoggins maintained she had no problems with those areas before the accident. Id. But medical records from Scoggins's personal physician showed that she had been examined for pain, numbness, and arthritis in her left leg, back, hip, and spine in thirty-five visits from 1976 through January 1994, two months before the March 1994 accident. Id. at 992. Scoggins also had undergone a lumbar omnipaquemyelogram in 1991 for lower back and leg pain. Id. Additionally, she had been treated with Xanax from June 1993 through January 1994. Id.","Finally, the Court notes that it will preclude Walker from introducing the Patterson Report at trial. Patterson wrote the report outside of court, and Walker would introduce it for the truth's that Patterson asserts. The Patterson Report, therefore, is inadmissible hearsay. See e.g., Skyline Potato Co. v. Hi-Land Potato Co., No. CIV 10-0698 JB/RHS, 2013 WL 311846, at *15 (D.N.M. Jan. 18, 2013) (Browning, J.)(excluding an expert report because it ""is a written document that [the expert] prepared outside of the court and contains statements offered ""for the truth of what the statements assert""); Vondrak v. City of Las Cruces, No. CIV 05-0172 JB/LFG, 2007 WL 2219449, at *3 n.4 (D.N.M. May 14, 2007) (Browning, J.), aff'd in part, rev'd in part, dismissed in part, 535 F.3d 1198 (10th Cir. 2008) (excluding the expert report ""because rule 703 of the Federal Rules of Evidence allows an expert to rely on inadmissible facts in reaching an opinion or inference, but does not allow the proponent of the expert testimony to use the expert as a conduit for a party to get in otherwise inadmissible evidence""); United States v. Mirabal, No. CR 09-3207 JB, 2010 WL 3834072, at *4 (D.N.M. Aug. 7, 2010) (Browning, J.)(concluding that expert report was inadmissible, and noting that, although inadmissible, ""[the expert] could rely upon that report, because the materials that form the basis of an expert opinion need not, themselves, be admissible....""). Accordingly, the Court grants the Motion in part and denies the Motion in part.","Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.30[1][b], at 131 (5th ed. 2013).","The relevant legal principles for determining whether the ""Employee's Report of Accident"" filled out by Handy is admissible revolve around the rules of hearsay and its exceptions, particularly the business records exception.

Passage 4 notes an exception to the hearsay rule allowing certain statements made by employees at the time of an incident to be admissible. Specifically, the business records exception, under Federal Rule of Evidence 803(6), permits the admission of records kept in the regular course of a business activity if they are made at or near the time of the incident by someone with knowledge, as seen in the motion concerning Sheriff Roger Scott’s affidavit (based on personal knowledge and supported by admissible business records). This indicates that Handy's accident report could be considered under this rule, given that it followed regular practice at Mart Department Store and was contemporaneously created.

Passage 12 reinforces that reports made outside of court and introduced for the truth asserted in them are generally inadmissible as hearsay unless they meet an exception, such as the business records exception.

Taken together, these passages suggest that Handy's report might be admissible if it meets the stringent criteria of the business records exception — it must be created as part of regular business practices and at or near the time of the incident by someone with relevant knowledge. If these conditions are met, Handy’s availability as a witness does not preclude the document’s admissibility under this exception.","The passage outlines hearsay as an out-of-court statement offered to prove the truth of the matter asserted and notes it is generally inadmissible unless an exception applies. One exception is if the declarant is unavailable to testify, defined broadly to include those who refuse to testify even when ordered by the court. For such unavailable declarants, specific hearsay exceptions apply, such as statements against interest—those statements that would not have been made unless the declarant believed them true because they were against their own interest. However, given Handy is available to testify, this exception does not apply, maintaining the report as inadmissible hearsay."
mbe_287,"Reggie offered Harriet $200 for a 30-day option to buy Harriet's land, Grandvale, for $10,000. As Harriet knew, Reggie, if granted the option, intended to resell Grandvale at a profit. Harriet declined, believing that she could find a desirable purchaser herself. Reggie thereupon said to Harriet, ""Make me a written 30-day offer, revocable at your pleasure, to sell me Grandvale at a sale price of $10,000, and tomorrow I will pay you $200 for so doing. "" Harriet agreed and gave Reggie the following document: For 30 days I offer my land known as Grandvale to Reggie for $10,000, this offer to be revocable at my pleasure at any time before acceptance. [Signed] Harriet Later that day Harriet's neighbor, Norma, said to Harriet, ""I know someone who would probably buy Grandvale for $15,000."" Harriet asked, ""Who?"" and Norma replied, ""My cousin Portia."" Harriet thanked Norma. Several hours later, Norma telephoned Harriet and said, ""Of course, if you sell to Portia I will expect the usual 5 per cent brokerage fee for finding a buyer."" Harriet made no reply. The next day Harriet telephoned Reggie, declared that her written offer to him was revoked, and demanded payment of $200. Reggie refused to pay. Harriet subsequently sold Grandvale to Portia for $15,000 but refused to pay Norma anything.","In a lawsuit by Harriet against Reggie to recover $200, which of the following arguments would plausibly support Harriet's position? I. Despite its wording, Harriet's writing was in legal effect an irrevocable offer for 30 days, given in consideration of Reggie's promise to pay $200. II. Although Harriet's writing was an offer that Harriet could revoke at will before acceptance, such an offer was exactly what Reggie had bargained for. III. Although Harriet's writing does not show any consideration for her act of making a revocable offer, such consideration (Reggie's promise to pay $200) can be proved by parol evidence.",I and II only,I and III only,II and III only,"I, II, and III",C,"Under Ohio law, parol, or extrinsic, evidence is only admissible if the terms of a contract are ambiguous, and can only be used to interpret, not contradict, the express language of the contract.","During proceedings surrounding the turnover order, the United States conceded its error and suggested that the appropriate resolution was to give Sheth ""credit for half the net equity of the property, relating back to 2011 and assuming a sale for its fully appraised value, with reasonable closing costs, and the net proceeds divided with Anita Sheth who had a half-interest in the property."" R. 294 at 8-9 (emphasis in original). The United States calculated that amount to be half of $ 215,466 or $ 107,773. Sheth declined the offer. The court agreed with the government, stating that ""Whatever the value of it then [when it was conveyed to Mrs. Sheth] ... net of the mortgage obligation is the amount that should be properly-half of that should be properly credited to Dr. Sheth. ... I think the way the government treated this property makes perfect sense under the circumstances."" Tr. 8/21/17, R. 303 at 7.","¶12 The Davidson buy-sell agreement specified a $ 341,000 purchased price for Parcel # 1 with a required $ 34,100 ""earnest money"" payment ""to be applied as partial payment of the purchase price"" with the balance due at closing. The Ide buy-sell agreement specified a $ 154,000 purchase price for Parcel #2 with a required $ 15,400 ""earnest money"" payment ""to be applied as partial payment of the purchase price"" with the balance due at closing. The agreements further stated that the ""Purchaser has given to"" the designated closing title company an earnest money ""deposit to be credited against the payment of the purchase price and as a guaranty of specific performance of this contract."" The ""Defaults"" section of the agreements provided that, ""[i]f Seller defaults in the performance of this Agreement, Purchaser may reclaim the earnest money deposit or ... shall have only the right of specific performance."" The agreements finally included the following integration clause and acknowledgements:","¶25 The cost of an option is not a component of an inequitable forfeiture. On point here is Pardee . There the option holder paid $16,000 to obtain the purchase option. In its assessment of the forfeiture possibility, the court excluded the option cost, noting that it was ""an acceptable result for the termination of an option."" 163 Wash.2d at 576, 182 P.3d 967. While the potential $300,000 discount here is a significant figure, it was the cost of enticing a fellow farmer to become an investor. Both parties wanted the land, and both were willing to enter into this deal in the hopes that they would ultimately own it. The discounted sale price was not a forfeiture.","With respect to the fourth tract, the Trustee acknowledged that, while the case was pending as a Chapter 11 proceeding, Gluckstadt and the Debtor (VCR) entered into an ""Agreed Order"" in which the Debtor agreed to sell the fourth tract of land to Gluckstadt for $ 612,500.00. Although the Order provided that the Debtor ""shall file and notice a motion for authority to sell the real property, free and clear of all liens, claims and interest, to [Gluckstadt], for $ 612,500.00, as soon as possible,"" the Trustee explained that no motion for authority to sell the fourth tract to Gluckstadt had ever been filed and that he had not supported Gluckstadt's proposed purchase of the property ""without an open bid process."" The Trustee stated that ""[t]he opening bid for Tract No. 4 shall be for $ 612,500.00 to Gluckstadt,"" but that he was ""under no obligation to sell to [Gluckstadt] unless the Opening Bid of [Gluckstadt] [was] the highest and best bid."" The Trustee requested authority to sell the property to the highest bidder, which sale would be ""fair and reasonable"" and ""in the best interest of the bankruptcy estate.""","First, as discussed in the Court's May 21 Opinion, an important component of the November Lease included the option it gave to MJCC to purchase the Nocha Property, for $ 1.2 million. Clearly, only the owner of the Nocha Property could legally give such an option, and could perform such an option by selling the property to MJCC, and the only owner of the Nocha Property was Weaam Nocha. Yet all of the language in the November Lease concerning the $ 1.2 million option to purchase referred to the seller's obligations as being those of the ""Landlord"" (which term is defined in the first paragraph of the Lease as the Debtor, Basrah). For example, ¶ 40 of the November Lease, captioned ""Option to Purchase,"" grants the option in this way: ""... Tenant shall have the option during the Term to purchase the [Nocha] Property from Landlord for the sum of [$ 1.2 million], as set forth in Exhibit C."" Exhibit C, in turn, says among other things that upon exercise of the purchase option by ""Tenant"" (i.e. , MJCC), at closing, MJCC ""shall (a) pay to Landlord the purchase price in certified funds"" and ""Landlord shall: (a) execute and deliver a warranty deed for the [Nocha] Property."" These references to the ""Landlord"" must be references to the only owner of the Nocha Property, i.e. , Weaam Nocha. They could not have been references to the Debtor, Basrah, in its own capacity, since it was clear (as the state court found) that the Debtor was not the owner of the Nocha Property, and therefore could not possibly transfer ownership of the Nocha Property to a buyer like MJCC.","Basic contract principles require, for an enforceable contract, an offer and acceptance, meeting of the minds, and consideration. ""[W]hether a contract exists is one of fact."" Schinzel, through her bid on the eBay listing, offered to pay $ 1,030 to receive a deed to the land parcel and acceptance came with Dinkins's email notifying her that she won the auction. In that email, Dinkins agreed to send Schinzel a warranty deed in exchange for $1,325 (the $ 1,030 winning bid and $ 295 to cover the document fees). Two days later, Dinkins emailed Schinzel to confirm that he had sent her the recorded deed. This shows at least a question of fact about whether the parties had a contract, and Dinkins makes no other argument about why he is entitled to summary judgment on these claims. For that reason, I deny his motion for summary judgment on Schinzel's counterclaims for breach of contract and breach of the implied covenant of good faith and fair dealing.","¶ 36 After having reviewed the record in the present case, we find that the trial court's ruling-that the novation was valid-was well-supported by the evidence. The evidence presented at the bench trial showed that on July 12, 2000, Conrad and Konopka entered into a valid initial agreement, which established the specific terms for the buyout of Conrad's interest in the subject property. Pursuant to that initial agreement, Conrad was to be paid a total of $ 350,000 for his interest with $ 142,000 to be paid up front at the closing of the purchase and the remaining $ 208,000 to be paid at a later time by Konopka out of Konopka's share of the distributions from CHLD's sales of the industrial park lots. In addition, pursuant to the terms of the initial agreement, Conrad was not allowed to record the agreement against the industrial park property and could not be paid the deferred payment until after CHLD had paid off Duba's initial investment and the bank loan. Two days later, before the initial agreement had been fully performed and before either party was in breach of the terms of the initial agreement, Conrad individually and Konopka as the manager of CHLD entered into a valid subsequent agreement-the novation in this case. Consistent with the legal definition of a novation, the July 14, 2000, agreement substituted CHLD for Konopka as the debtor that was responsible for paying the deferred payment to Conrad. See Black's Law Dictionary (10th ed. 2014); Restatement (Second) of Contracts § 280 (1981) ; Pielet , 2012 IL 112064, ¶ 52, 365 Ill.Dec. 497, 978 N.E.2d 1000. The novation also changed some of the terms of the payment in that it gave Conrad a limited right to record his interest against the property and removed the requirement that Conrad had to wait to receive payment until after Duba's initial investment and the bank loan had been paid off. The novation was agreed to by all three of the parties involved-Conrad as the creditor, Konopka (implicitly) as the initial debtor, and CHLD as the substitute debtor (see Pielet , 2012 IL 112064, ¶ 52, 365 Ill.Dec.","[¶10] There are several aspects of the document that support the estate's interpretation asserting the agreement was a grant, purchase agreement, or contract for deed. The term of the agreement, ""in perpetuity,"" is an unusual term for lease. The document states the property will be Lyons' ""to have and to hold in perpetuity."" The document required Kabella to continue to pay the real estate taxes on the property in perpetuity without any reciprocal rental income after June 2011. The continuing obligation to pay the real estate taxes would have placed increasing pressure on Kabella to invoke his right to sell the property and trigger the option to purchase, making the option to purchase a significant object of the agreement. While not prohibited, a lease for a significant term with front-loaded payments would be unusual. In the event of escalating land prices, the agreement locked Kabella into a fixed sales price and in the event of declining land prices, locked Lyons into the initial fixed payments if he decided not to opt out of the agreement. This indicates the option to purchase was a significant object of the agreement. Lyons would have received credit for all of the prior payments in the event he elected to exercise the option to purchase if Kabella decided to sell the property, again indicating the option to purchase was a significant object of the agreement. Kabella was locked into receiving a fixed amount of rent, regardless of the number of years Lyons remained on the property or whether fair market rent increased. Lyons also had the right to terminate the agreement without penalty and before making the total payments required under the agreement. The visual structure of the document itself closely resembles a deed. There are no restrictions on what Lyons could do with the property. There are no provisions limiting improvements or determining who would own the improvements. There are no limitations on assignment, and the document repeatedly uses a phrase common to real property transfers by allowing Lyons to transfer his rights under the agreement to ""heirs, successors, personal representatives and assigns."" From a substantive standpoint, much of the agreement is an option to purchase or contract for deed.","In 2004, at the conclusion of the second three-year term, Ms. Zanders offered to purchase the property from Mr. Reid for $ 190,000. Id. at 1100. Mr. Reid rejected that offer, instead offered to sell Ms. Zanders the house for $ 300,000, and when she refused, entered into a conditional agreement with Richard and Shirley Baker to sell them the property for $ 350,000. Id. Consistent with the requirements of the Tenant Opportunity to Purchase Act (TOPA), Mr. Reid notified Ms. Zanders of her right of first refusal, which she allegedly attempted to exercise. Id. Mr. Reid still proceeded to sell the property to the Bakers for the agreed-upon price, while Ms. Zanders continued to live on the property. Id.","Gilson purchased parcel 2 on September 12, 2008, and purchased parcel 3 on October 28, 2010. Sullivan avers that he provided Gilson with the funds to purchase parcels 2 and 3 in the amounts of $ 160,000 and $ 110,000, respectively, and that Gilson orally promised to convey the deeds to him. The record is silent as to whether Sullivan and Gilson agreed on a date on which Gilson would transfer deeds for parcels 2 and 3 and, if so, what that date was. Gilson did not dispute that Sullivan provided her with money that she used toward purchasing parcels 2 and 3. Instead, Gilson asserted that she did not agree to purchase the land on Sullivan's behalf (and that the funds were a loan). In total, Sullivan avers that he has paid Gilson $ 799,012.22 for the three parcels.","1. **Option Cost and Consideration**: Passage [¶25] highlights the principle that the cost of an option (here, Reggie’s promise to pay $200) is viewed as separate from other contract considerations and is valid to secure an option agreement. Although forfeiture of such cost is acceptable if the option is terminated, it indicates that Reggie's promise to pay could constitute valid consideration for Harriet’s offer.

2. **Basic Contract Principles**: The last passage on Schinzel and Dinkins reaffirms that a valid contract requires an offer, acceptance, meeting of the minds, and consideration. The passage suggests that Reggie’s arrangement to pay $200 for securing the offer, even if revocable, could be seen as fulfilling these contract elements.

3. **Earnest Money and Specific Performance**: Passage [¶12] from the Davidson buy-sell agreement shows that earnest money typically serves as consideration, supporting the argument that Reggie's promise to pay $200 for Harriet’s revocable offer serves as valid consideration, securing Harriet's commitment even if revocable.

4. **Parol Evidence Rule and Consideration**: The reference to parol evidence (in passage [¶36]) generally supports using external evidence to prove underlying consideration that is not expressed in the written agreement, suggesting that Reggie could use parol evidence to establish his promise to pay $200 as consideration.

Together, these principles suggest that contractual elements like consideration, enforceability of option agreements, and the use of parol evidence might legitimately support Harriet’s position in the lawsuit.","Had defendant's bid expressly stated or clearly implied that it was revocable at any time before acceptance we would treat it accordingly. It was silent on revocation, however, and we must therefore determine whether there are conditions to the right of revocation imposed by law or reasonably inferable in fact. In the analogous problem of an offer for a unilateral contract, the theory is now obsolete that the offer is revocable at any time before complete performance. Thus section 45 of the Restatement of Contracts provides: ‚ÄòIf an offer for a unilateral contract is made, and part of the consideration requested in the offer is given or tendered by the offeree in response thereto, the offeror is bound by a contract, the duty of immediate performance of which is conditional on the full consideration being given or tendered within the time stated in the offer, or, if no time is stated therein, within a reasonable time.‚Äô In explanation, comment b states that the ‚Äòmain offer includes as a subsidiary promise, necessarily implied, that if part of the requested performance is given, the offeror will not revoke his offer, and that if tender is made it will be accepted. Part performance or tender may thus furnish consideration for the subsidiary promise. Moreover, merely acting in justifiable reliance on an offer may in some cases serve as sufficient reason for making a promise binding (see s 90).‚Äô Whether implied in fact or law, the subsidiary promise serves to preclude the injustice that would result if the offer could be revoked after the offeree had acted in detrimental reliance thereon. Reasonable reliance resulting in a foreseeable prejudicial change in position affords a compelling basis also for implying a subsidiary promise not to revoke an offer for a bilateral contract. The absence of consideration is not fatal to the enforcement of such a promise. It is true that in the case of unilateral contracts the Restatement finds consideration for the implied subsidiary promise in the part performance of the bargained-for exchange, but its reference to section 90 makes clear that consideration for such a promise is not always necessary. The very purpose of section 90 is to make a promise binding even though there was no consideration ‚Äòin the sense of something that is bargained for and given in exchange.‚Äô (See 1 Corbin, Contracts 634 et seq.) Reasonable reliance serves to hold the offeror in lieu of the consideration ordinarily required to make the offer binding. In a case involving similar facts the Supreme Court of South Dakota stated that ‚Äòwe believe that reason and justice demand that the doctrine (of section 90) be applied to the present facts. We cannot believe that by accepting this doctrine as controlling in the state of facts before us we will abolish the requirement of a consideration in contract *415 cases, in any different sense than an ordinary estoppel abolishes some legal requirement in its application. We are of the opinion, therefore, that the defendants in executing the agreement (which was not supported by consideration) made a promise which they should have reasonably expected would induce the plaintiff to submit a bid based thereon to the Government, that such promise did induce this action, and that injustice can be avoided only by enforcement of the promise.‚Äô Northwestern Engineering Co. v. Ellerman, 69 S.D. 397, 408, 10 N.W.2d 879, 884; see also, Robert Gordon, Inc., v. Ingersoll-Rand Co., 7 Cir., 117 F.2d 654, 661; cf. James Baird Co. v. Gimbel Bros., 2 Cir., 64 F.2d 344. When plaintiff used defendant's offer in computing his own bid, he bound himself to perform in reliance on defendant's terms. Though defendant did not bargain for this use of its bid neither did defendant make it idly, indifferent to whether it would be used or not. On the contrary it is reasonable to suppose that defendant submitted its bid to obtain the subcontract. It was bound to realize the substantial possibility that its bid would be the lowest, and that it would be included by plaintiff in his bid. It was to its own interest that the contractor be awarded the general contract; the lower the subcontract bid, the lower the general contractor's bid was likely to be and the greater its cnance of acceptance and hence the greater defendant's chance of getting the paving subcontract. Defendant had reason not only to expect plaintiff to rely on its bid but to want him to. Clearly defendant had a stake in plaintiff's reliance on its bid. Given this interest and the fact that plaintiff is bound by his own bid, it is only fair that plaintiff should have at least an opportunity to accept defendant's bid after the general contract has been awarded to him.","Missouri law governs this case. See Baker v. Bristol Care, Inc. , 450 S.W.3d 770, 774 (Mo. 2014) (en banc). Missouri law requires (1) an offer, (2) acceptance, and (3) consideration to form a valid and enforceable contract. Id . An offer is made when the offeree-the person receiving the offer-would ""reasonably believe that an offer has been made."" Jackson , 497 S.W.3d at 288 (internal quotation omitted). A valid offer does not require the use of any specific terms of art. See id . The use of typical contractual terms can be helpful to discern intent. Id . at 289. A valid offer will include the ability to accept through some affirmative words or action. See id . at 290. An acceptance is present when the offeree signifies assent to the terms of the offer in a ""positive and unambiguous"" manner. Katz v. Anheuser-Busch, Inc. , 347 S.W.3d 533, 545 (Mo. Ct. App. 2011) (quoting Kunzie v. Jack-In-The-Box, Inc. , 330 S.W.3d 476, 484 (Mo. Ct. App. 2010) ). Together, offer and acceptance constitute mutual assent. See Guidry v. Charter Commc'ns, Inc. , 269 S.W.3d 520, 528 (Mo. Ct. App. 2008). Third, an agreement must have an exchange of consideration: a promise to do something or refrain from doing something, or the transfer of something of value to the other party. Baker , 450 S.W.3d at 774.","¬ß 2A-205. FIRM OFFERS. An offer by a merchant to lease goodsto or from another person in a signed writing that by its terms gives assurance it will be held open is not revocable, for lack of consideration, during the time stated or, if no time is stated, for a reasonable time, but in no event may the period of irrevocability exceed 3 months. Any such term of assurance on a form supplied by the offeree must be separately signed by the offeror.","¬ß 2-205. Firm Offers. An offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the time stated or if no time is stated for a reasonable time, but in no event may such period of irrevocability exceed three months; but any such term of assurance on a form supplied by the offeree must be separately signed by the offeror.",I. The Pertinent Law on the Validity of 998 Offers,"¬ß 2-201. Formal Requirements; Statute of Frauds. (1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within 10 days after it is received.(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable(a) if the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller's business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement; or(b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or(c) with respect to goods for which payment has been made and accepted or which have been received and accepted (Sec. 2-606).",V. Whether the Regents Are Entitled to Summary Judgment Based on Revocation of the January 10 Offer.,II. Whether Valuable Consideration Was Paid or to Be Paid,"Here, because the court is sitting in diversity, state substantive law applies; because the contract at issue is for the sale of goods, the Uniform Commercial Code (""UCC"") applies. J.D. Fields & Co. v. U.S. Steel Int'l, Inc. , 426 F. App'x 271, 276 (5th Cir. 2011) (hereinafter U.S. Steel Int'l ). Under the UCC, ""[a] contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract."" Id. (citing Tex. Bus. & Com. Code Ann. ¬ß¬ß 2.201 -.210). The UCC ""supplements"" the four basic elements of an enforceable contract: (1) offer; (2) acceptance; (3) a ""meeting of the minds"" as to subject matter and essential terms; and (4) consideration or mutuality of obligation. Omni USA, Inc. v. Parker-Hannifin Corp. , 798 F. Supp. 2d 831, 846 (S.D. Tex. 2011) (Harmon, J.). Thus, contract formation ""hinge[s] on the existence of an acceptable offer."" U.S. Steel Int'l , 426 F. App'x at 276 (citing Crest Ridge Constr. Grp., Inc. v. Newcourt Inc. , 78 F.3d 146, 152 (5th Cir. 1996) (Benavides, J., concurring) ). Although the UCC does not define ""offer,"" the Fifth Circuit has held that an offer is ""an act that leads the offeree reasonably to believe that assent (i.e. , acceptance) will conclude the deal."" Axelson, Inc. v. McEvoy-Willis , 7 F.3d 1230, 1232-33 (5th Cir. 1993).","¬∂12 An option contract is ""a complete, valid and binding agreement"" to which general contract principles apply. Bennett Veneer Factors, Inc. v. Brewer , 73 Wash.2d 849, 853, 441 P.2d 128 (1968). ""In applying these general contract principles, our primary goal in interpreting the option contract is to ascertain the parties' mutual intent."" Chevalier v. Woempner , 172 Wash. App. 467, 476, 290 P.3d 1031 (2012). Under the ""objective manifestation"" theory of contracts, we determine the parties' intent by focusing on the objective manifestations expressed in their contract rather than focusing on unexpressed subjective intentions. Hearst Commc'n, Inc. v. Seattle Times Co. , 154 Wash.2d 493, 503, 115 P.3d 262 (2005). Thus, courts will ""impute an intention corresponding to the reasonable meaning of the words used"" in the contract. Id. The parties' subjective intent ""is generally irrelevant if the intent can be determined from the actual words used"" in the contract. Id . at 504, 115 P.3d 262. Courts will interpret what was ""written instead of what was intended to be written."" Id . ""Accordingly, we give language in the option contract its ordinary, usual, and popular meaning unless the contract clearly demonstrates a contrary intent."" Woempner , 172 Wash. App. at 476, 290 P.3d 1031. Ambiguities in a contract typically are construed against the drafter. Rouse v. Glascam Builders, Inc. , 101 Wash.2d 127, 135, 677 P.2d 125 (1984).","The provided passages offer insight into key legal principles relevant to Harriet's potential claims against Reggie:

1. One principle revolves around the enforceability of offers and promise-induced reliance. If an offeror's actions suggest that an offer is meant to induce reliance, the offer may be rendered irrevocable to prevent injustice (Restatement of Contracts §45 and §90, Northwestern Engineering Co. v. Ellerman).

2. Another principle concerns contract formation under Missouri law, emphasizing the need for offer, acceptance, and consideration. Harriet's writing, despite its language allowing revocation, could be seen as a serious offer if Reggie reasonably believed it was, and Reggie's promise to pay $200 might be seen as consideration supporting the offer's enforceability (Baker v. Bristol Care, Inc., Guidry v. Charter Communications, Inc.).

3. The concept of firm offers under the Uniform Commercial Code (UCC) (§2-205, §2A-205) specifies that a signed offer which gives assurance that it will be held open, even without consideration, is irrevocable for a stated time or a reasonable time not exceeding three months.

4. Parol evidence may also be used to demonstrate consideration not explicitly stated in the written offer, reinforcing the enforceability of Harriet's offer based on Reggie's promise to pay (UCC §2-201, various case law implications).

These points collectively highlight the possibilities for Harriet's arguments about the irrevocability of her offer and the influence of Reggie's anticipated payment.","The passage indicates that under Ohio law, parol evidence is admissible only when the terms of a contract are ambiguous. Moreover, such evidence can only be used for interpretation purposes and cannot contradict the express language of the contract. Therefore, any argument relying on parol evidence to prove consideration not expressed in the document must fit within this interpretative framework and cannot conflict with the clear terms outlined in the written agreement."
mbe_326,,In 1963 Hobson was appointed to a tribunal established pursuant to a congressional act. The tribunal's duties were to review claims made by veterans and to make recommendations to the Veterans Administration on their merits. Congress later abolished the tribunal and established a different format for review of such claims. Hobson was offered a federal administrative position in the same bureau at a lesser salary. He thereupon sued the government on the ground that Congress may not remove a federal judge from office during good behavior nor diminish his compensation during continuance in office. Government attorneys filed a motion to dismiss the action. The court should,deny the motion because of the independence of the federal judiciary constitutionally guaranteed by Article III,"deny the motion, because Hobson has established a property right to his federal employment on the tribunal","grant the motion, because Hobson lacked standing to raise the question","grant the motion, because Hobson was not a judge under Article III and is not entitled to life tenure",D,"Article III states that these judges ‚Äúhold their office during good behavior,‚Äù which means they have a lifetime appointment, except under very limited circumstances. Article III judges can be removed from office only through impeachment by the House of Representatives and conviction by the Senate.","The Fifth Circuit has established that the ""deliberate indifference"" standard applies to a pretrial detainee's claims involving the denial of medical care under § 1983. See, e.g ., id. at 647-48. Under this standard, an episodic act or omission by a governmental employee does not violate a pretrial detainee's constitutional right to medical care unless the pretrial detainee demonstrates that the employee acted or failed to act with subjective deliberate indifference to his serious medical needs. Id. at 643, 647-48. "" 'For an official to act with deliberate indifference, 'the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.' "" Harris v. Hegmann , 198 F.3d 153, 159 (5th Cir. 1999) (quoting Smith v. Brenoettsy , 158 F.3d 908, 912 (5th Cir. 1998) (quoting Farmer v. Brennan , 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ). Such indifference on the part of a government employee can be evidenced by intentionally denying or delaying access to medical care or by intentionally interfering with the treatment prescribed. Id. (citing Estelle v. Gamble , 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ). Additionally, liability requires ""more than ordinary lack of due care for the prisoner's interests or safety."" Farmer , 511 U.S. at 835, 114 S.Ct. 1970 (quoting Whitley v. Albers , 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) ). In other words, mere negligence on the part of a governmental employee does not constitute deliberate indifference. Wilson v. Seiter , 501 U.S. 294, 305, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) ; see also Trevino v. Hinz , 751 Fed. Appx.","The civilian CMCR judges, generally, are subject to the statutory and regulatory ethical proscriptions applicable to all Federal employees absent a modification or exemption. It would be better if Congress amended the relevant statutes to provide CMCR judges with an alternative to SOCO, independent of the Department, for ethical guidance and support and for EGA compliance consistent with that applicable to other Article I judges. However, in the absence of such legislation, civilian CMCR judges have no choice but to turn to the Department when the need for ethical advice arises and to comply with EGA financial filing requirements. Doing this in the circumstances set forth in the motions before us does not compromise the independence of any CMCR judge for several reasons.","At issue here is the discretionary function exception, which provides that the FTCA's waiver of sovereign immunity does not extend to any claim against the United States ""based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."" 28 U.S.C. § 2680(a). This exception ""prevent[s] judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort."" Williams v. United States , 50 F.3d 299, 309 (4th Cir. 1995). The discretionary function exception applies if two requirements are met; the government action at issue (i) must ""involve[ ] an element of judgment or choice"" (ii) that is ""based on considerations of public policy."" Holbrook v. United States , 673 F.3d 341, 345 (4th Cir. 2012) (quoting Berkovitz v. United States , 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) ). The Fourth Circuit has held that ""[p]laintiffs bear the burden of proving that the discretionary-function exception does not apply"" to the challenged government conduct. Indemnity Ins. Co. of North America v. United States , 569 F.3d 175, 180 (4th Cir. 2009).","The CMCR is the fifth Article I court of record created by Congress. It is an independent Court. Its decisions are not reviewable by anyone within the Executive Branch. They are appealable only to the D.C. Circuit and, upon a grant of a Writ of Certiorari, to the Supreme Court. 10 U.S.C. § 950(g). The civilian judges report to no one within the Executive Branch. They can be removed only for cause. The military appellate judges in their capacity as CMCR judges also report to no one in the Executive Branch. They have statutory protection from at will removal by their respective Services. See 10 U.S.C. § 949b(4). In contrast, the CMCR's predecessor was an agency review panel created by the 2006 MCA. Its judges were at will appointees of the Secretary of Defense. See Khadr , 62 F. Supp. 3d at 1316-17.","The election-of-remedies provision in section 101.106(f) of the Texas Tort Claims Act requires courts to grant a motion to dismiss a lawsuit against a governmental employee sued in an ""official capacity"" but allows the governmental unit to be substituted for the employee. By adopting section 101.106(f), the Legislature has effectively mandated that only a governmental unit can be sued for a governmental employee's work-related tortious conduct. In this case, an off-duty law enforcement officer fatally shot a suspect during the course of an attempted arrest outside his primary jurisdiction. The decedent's parents sued the officer in his individual capacity for wrongful death, but the officer asserts the action is actually an official-capacity suit that must be dismissed under the Act.","In New York Times Co. v. Sullivan , the Supreme Court held that the First Amendment ""prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not."" 376 U.S. at 279-80, 84 S.Ct. 710. At that time, the Court noted that it had ""no occasion here to determine how far down into the lower ranks of government employees the 'public official' designation would extend ... or otherwise to specify categories of persons who would or would not be included."" Id. at 283 n.23, 84 S.Ct. 710. Two years later, the Court elaborated that the higher fault requirement for public officials was based on two motivating forces: ""first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues."" Rosenblatt v. Baer , 383 U.S. 75, 85, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). The Court went on to note, however, that those interests must be balanced against the ""pervasive and strong interest"" society has in ""preventing and redressing attacks upon reputation."" Id. at 86, 86 S.Ct. 669.","627–628 (1911 ed.). As one of our early opinions suggests, its obvious purpose is administrative convenience, see United States v. Germaine, 99 U.S. 508, 510, 25 L.Ed. 482 (1879)—but that convenience was deemed to outweigh the benefits of the more cumbersome procedure only with respect to the appointment of “inferior Officers.” Section 323(a), which confers appointment power upon the Secretary of Transportation, can constitutionally be *661 applied to the appointment of Court of Criminal Appeals judges only if those judges are “inferior Officers.”  Our cases have not set forth an exclusive criterion for distinguishing between principal and inferior officers for Appointments Clause purposes. Among the offices that we have found to be inferior are that of a district court clerk, Ex parte Hennen, 38 U.S. (13 Pet.) 225, 229, 10 L.Ed. 136 (1839), an election supervisor, Ex parte Siebold, 100 U.S. 371, 397–398, 25 L.Ed. 717 (1880), a vice consul charged temporarily with the duties of the consul, United States v. Eaton, 169 U.S. 331, 343, 18 S.Ct. 374, 379, 42 L.Ed. 767 (1898), and a “United States commissioner” in district court proceedings, Go–Bart Importing Co. v. United States, 282 U.S. 344, 352–354, 51 S.Ct. 153, 156–157, 75 L.Ed. 374 (1931). Most recently, in Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988), we held that the independent counsel created by provisions of the Ethics in Government Act of 1978, 28 U.S.C. §§ 591–599, was an inferior officer. In reaching that conclusion, we relied on several factors: that the independent counsel was subject to removal by a higher officer (the Attorney General), that she performed only limited duties, that her jurisdiction was narrow, and that her tenure was limited. 487 U.S., at 671–672, 108 S.Ct., at 2608–2609.","In addition to establishing judicial power to review the constitutionality of statutes, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), demonstrated that courts can review the President's power under a statute and determine whether the President acted in excess of such statutory powers. This latter form of review has been described as nonstatutory review and is to be contrasted with the type of judicial review provided for by a specific statute, such as the APA. See Jonathan R. Siegel, Suing the President: Nonstatutory Review Revisited, 97 Colum. L. Rev. 1612, 1613-14 (1997) (discussing nonstatutory review). For example, in United States v. Yoshida International, Inc., 526 F.2d 560 (C.C.P.A. 1975), the Court of Customs and Patent Appeals (""CCPA"") addressed whether Presidential Proclamation 4074 was within the President's delegated authority. Proclamation 4074 declared, inter alia, a national emergency related to the country's economic position, and assessed a supplemental duty of 10% on all dutiable products. Yoshida International, 526 F.2d at 567-68. Further, the proclamation authorized the President to, at any time, modify or terminate, in whole or in part, any proclamation made under his authority. Id. at 568. The CCPA held that although neither the Tariff Act of 1930 nor the Trade Expansion Act of 1962 authorized the proclamation, its adoption fell within the powers granted to the President under the Trading with the Enemy Act, i.e., to regulate or prohibit importation of goods during periods of war or national emergency. Id. at 576. The court reviewed the action not under the APA or any statute conferring judicial review but sought to answer the question of whether Proclamation 4074 was an ultra vires presidential act. Id. at 583.","The FTCA contains several exceptions to the waiver of sovereign immunity. See 28 U.S.C. § 2680(a) - (n). Under the ""discretionary function"" exception, the government may not be liable for acts grounded in public policy considerations that involve an element of judgment. 28 U.S.C. § 2680(a) (excluding from liability ""an act or omission of an employee of the Government ... based upon the exercise or performance or the failure to exercise or perform a discretionary function""); United States v. Gaubert , 499 U.S. 315, 322-23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (citing Berkovitz v. United States ,486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) ); United States v. Varig Airlines , 467 U.S. 797, 813, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984) ). This exception ""insulates certain governmental decision-making from judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort."" Myers v. United States , 652 F.3d 1021, 1028 (9th Cir. 2011) (internal quotation marks and citations omitted). ""In other words, 'if judicial review would encroach upon th[e] type of balancing done by an agency, then the [discretionary function] exception' applies."" O'Toole v. United States , 295 F.3d 1029, 1033 (9th Cir. 2002) (quoting Begay v. United States , 768 F.2d 1059, 1064 (9th Cir. 1985) ).","Federal courts have the authority to review the decision of a military board of correction under the Administrative Procedure Act (APA). 5 U.S.C. § 701 et seq. ; Piersall v. Winter , 435 F.3d 319, 323-25 (D.C. Cir. 2006). Decisions of the BCNR are ""subject to judicial review and can be set aside if they are arbitrary, capricious or not based on substantial evidence."" Chappell v. Wallace , 462 U.S. 296, 303, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) ; see also 5 U.S.C. § 706(2)(A),(E) (requiring the reviewing court to ""set aside agency action ... found to be"" ""arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"" or ""unsupported by substantial evidence....""); and 10 U.S.C. § 1558(f)(3)(A) (authorizing a court to set aside an action of the Secretary of any military department ""only if the court finds that the recommendation or action was-(A) arbitrary or capricious; (B) not based on substantial evidence; (C) a result of material error of fact or material administrative error; or (D) otherwise contrary to law"").","The relevant principles for answering the legal question derive from understanding which federal officers fall under the protection of Article III, which guarantees life tenure and protection from salary diminution for judges. Article III judges are appointed for life, have protections against removal unless for cause, and receive undiminished compensation during their tenure in office. Passage 4 specifies that Article I judges, such as civilian judges on the Court of Military Commission Review (CMCR) and administrative positions, do not benefit from these same constitutional protections as Article III judges. These judges can be removed for cause and do not have the same salary protection. Additionally, the historical context provided by court precedents (e.g., Morrison v. Olson) helps differentiate between principal and inferior officers but still underscores the lack of Article III protections for positions not explicitly created under Article III. Passages 8 and 9 indicate that review of administrative actions, or actions by military boards, can be conducted under the Administrative Procedure Act (APA), but this review doesn't alter the classification of the officer under Article III. Lastly, no passages suggest that roles like Hobson's within a tribunal, established under a congressional act, enjoy the specific constitutional protections reserved for Article III judges.","Article I Section 6. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place. No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time: and no person holding any office under the United States, shall be a member of either House during his continuance in office.","The Appointments Clause of Article II of the Constitution reads as follows: ‚Äú[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.‚Äù U.S. Const., Art. II, ¬ß 2, cl. 2. 5678As we recognized in Buckley v. Valeo, 424 U.S. 1, 125, 96 S.Ct. 612, 685, 46 L.Ed.2d 659 (1976) (per curiam), the Appointments Clause of Article II is more than a matter of ‚Äúetiquette or protocol‚Äù; it is among the significant structural safeguards of the constitutional scheme. By vesting the President with the exclusive power to select the principal (noninferior) officers of the United States, the Appointments Clause prevents congressional encroachment upon the Executive and Judicial Branches. See id., at 128‚Äì131, 96 S.Ct., at 686‚Äì688; Weiss, supra, at 183‚Äì185, 114 S.Ct., at 763‚Äì765 (SOUTER, J., concurring); Freytag v. Commissioner, 501 U.S. 868, 904, and n. 4, 111 S.Ct. 2631, 2652, and n. 4, 115 L.Ed.2d 764 (1991) (SCALIA, J., concurring). This disposition was also designed to assure a higher quality of appointments: The Framers anticipated that the President would be less vulnerable to interest-group pressure and personal favoritism than would a collective body. ‚ÄúThe sole and undivided responsibility of one man will naturally beget a livelier sense of duty, and a more exact regard to reputation.‚Äù The Federalist No. 76, p. 387 (M. Beloff ed. 1987) (A. Hamilton); accord, 3 J. Story, Commentaries on the Constitution of the United States 374‚Äì375 (1833). The President's power to select principal officers of the United States was not left unguarded, however, as Article II further requires the ‚ÄúAdvice and Consent of the Senate.‚Äù This serves both to curb Executive abuses of the appointment power, see 3 Story, supra, at 376‚Äì377, and ‚Äúto promote a judicious choice of [persons] for filling the offices of the union,‚Äù The Federalist No. 76, at 386‚Äì387. *660 By requiring the joint participation of the President and the Senate, the Appointments Clause was designed to ensure public accountability for both the making of a bad appointment and the rejection of a good one. Hamilton observed: ‚ÄúThe blame of a bad nomination would fall upon the president singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the senate; aggravated by the consideration of their having counteracted the good intentions of the executive. If an ill appointment should be made, the executive for nominating, and the senate for approving, would participate, though in different degrees, in the opprobrium and disgrace.‚Äù Id., No. 77, at 392. See also 3 Story, supra, at 375 (‚ÄúIf [the President] should ... surrender the public patronage into the hands of profligate men, or low adventurers, it will be impossible for him long to retain public favour‚Äù). The prescribed manner of appointment for principal officers is also the default manner of appointment for inferior officers. ‚Äú[B]ut,‚Äù the Appointments Clause continues, ‚Äúthe Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.‚Äù This provision, sometimes referred to as the ‚ÄúExcepting Clause,‚Äù was added to the proposed Constitution on the last day of the Grand Convention, with little discussion. See 2 M. Farrand, Records of the Federal Convention of 1787, pp. 627‚Äì628 (1911 ed.). As one of our early opinions suggests, its obvious purpose is administrative convenience, see United States v. Germaine, 99 U.S. 508, 510, 25 L.Ed. 482 (1879)‚Äîbut that convenience was deemed to outweigh the benefits of the more cumbersome procedure only with respect to the appointment of ‚Äúinferior Officers.‚Äù Section 323(a), which confers appointment power upon the Secretary of Transportation, can constitutionally be *661 applied to the appointment of Court of Criminal Appeals judges only if those judges are ‚Äúinferior Officers.‚Äù Our cases have not set forth an exclusive criterion for distinguishing between principal and inferior officers for Appointments Clause purposes. Among the offices that we have found to be inferior are that of a district court clerk, Ex parte Hennen, 38 U.S. (13 Pet.) 225, 229, 10 L.Ed. 136 (1839), an election supervisor, Ex parte Siebold, 100 U.S. 371, 397‚Äì398, 25 L.Ed. 717 (1880), a vice consul charged temporarily with the duties of the consul, United States v. Eaton, 169 U.S. 331, 343, 18 S.Ct. 374, 379, 42 L.Ed. 767 (1898), and a ‚ÄúUnited States commissioner‚Äù in district court proceedings, Go‚ÄìBart Importing Co. v. United States, 282 U.S. 344, 352‚Äì354, 51 S.Ct. 153, 156‚Äì157, 75 L.Ed. 374 (1931). Most recently, in Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988), we held that the independent counsel created by provisions of the Ethics in Government Act of 1978, 28 U.S.C. ¬ß¬ß 591‚Äì599, was an inferior officer. In reaching that conclusion, we relied on several factors: that the independent counsel was subject to removal by a higher officer (the Attorney General), that she performed only limited duties, that her jurisdiction was narrow, and that her tenure was limited. 487 U.S., at 671‚Äì672, 108 S.Ct., at 2608‚Äì2609.","The majority relies for its contrary vision on Article II's Vesting Clause, see ante, at 2197, 2204 - 2205, but the provision can't carry all that weight. Or as Chief Justice Rehnquist wrote of a similar claim in Morrison v. Olson , 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988), ""extrapolat[ing]"" an unrestricted removal power from such ""general constitutional language""-which says only that ""[t]he executive Power shall be vested in a President""-is ""more than the text will bear."" Id., at 690, n. 29, 108 S.Ct. 2597. Dean John Manning has well explained why, even were it not obvious from the Clause's ""open-ended language."" Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1971 (2011). The Necessary and Proper Clause, he writes, makes it impossible to ""establish a constitutional violation simply by showing that Congress has constrained the way '[t]he executive Power' is implemented""; that is exactly what the Clause gives Congress the power to do. Id., at 1967. Only ""a specific historical understanding"" can bar Congress from enacting a given constraint. Id., at 2024. And nothing of that sort broadly prevents Congress from limiting the President's removal power. I'll turn soon to the Decision of 1789 and other evidence of Post-Convention thought. See infra , at 2228 - 2231. For now, note two points about practice before the Constitution's drafting. First, in that era, Parliament often restricted the King's power to remove royal officers-and the President, needless to say, wasn't supposed to be a king. See Birk, Interrogating the Historical Basis for a Unitary Executive, 73 Stan. L. Rev. (forthcoming 2021). Second, many States at the time allowed limits on gubernatorial removal power even though their constitutions had similar vesting clauses. See Shane, The Originalist Myth of the Unitary Executive, 19 U. Pa. J. Const. L. 323, 334-344 (2016). Historical understandings thus belie the majority's ""general rule.""","Article III Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.","Because the elimination of the solicited-fax rule applies to Safemark, we need not decide whether the district court violated the Hobbs Act when it refused to apply that rule. But I write separately to explain that our precedents have misconstrued the Act's grant of ""exclusive jurisdiction"" to the circuit courts ""to enjoin, set aside, suspend (in whole or in part), or to determine the validity of"" certain agency orders, 28 U.S.C. ¬ß 2342. Our precedents, Self v. Bellsouth Mobility, Inc. , 700 F.3d 453 (11th Cir. 2012), and Mais v. Gulf Coast Collection Bureau , 768 F.3d 1110 (11th Cir. 2014), interpret the Act to mean that an agency's interpretation of federal law in a final order is subject to only a single 60-day window for judicial review in a single circuit-court proceeding, outside of which no party to any proceeding in any court may question the agency's interpretation, no matter how wrong. Four justices of the Supreme Court have recently explained-with good reason and without any justice voicing a contrary interpretation-that the Act means no such thing and might well be unconstitutional if it did. See PDR Network, LLC v. Carlton & Harris Chiropractic, Inc. , --- U.S. ----, 139 S. Ct. 2051, 2057, 2062-66, --- L.Ed.2d ---- (2019) (Kavanaugh, J., concurring in the judgment); see also id. at 2056-57 (Thomas, J., concurring in the judgment). The Hobbs Act, correctly construed, does not require district courts adjudicating cases within their ordinary jurisdiction to treat agency orders that interpret federal statutes as binding precedent. Our precedents' interpretation of the Hobbs Act ignores the statutory context, generates absurd results, and raises serious constitutional doubts. In the earliest appropriate case, we should correct our mistake en banc.","To be sure, district courts must sometimes defer to agency interpretations of statutes. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). But that deference only occurs if the district court determines that the governing statute is ambiguous-a determination that requires the district court to consult first the text of the statute. See id. at 842-43, 104 S.Ct. 2778. By contrast, our interpretation of the Hobbs Act prevents district courts from even considering the statute and instead requires them to ""treat [agency] interpretations of the [statute] as authoritative,"" no matter how patently incorrect. See PDR Network , 139 S. Ct. at 2057 (Thomas, J., concurring in the judgment) (citation and internal quotation marks omitted). That is, our interpretation requires not ""mere ... deference"" to agency interpretations but absolute ""abdication"" of the judicial power to determine the law that governs a case. Id. at 2066 (Kavanaugh, J., concurring in the judgment). The Supreme Court has never suggested that Congress can transfer that core judicial power to an agency wholesale. See Commodity Futures Trading Comm'n v. Schor , 478 U.S. 833, 851, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (highlighting the constitutional significance of ""the extent to which the 'essential attributes of judicial power' are reserved to Article III courts""). In the same vein, by ""requir[ing] courts to give the force of law to agency pronouncements on matters of private conduct without regard to the text of the governing statute,"" the Act as we have interpreted it would effectively ""permit a body other than Congress to exercise the legislative power, in violation of Article I."" PDR Network , 139 S. Ct. at 2057 (Thomas, J., concurring in the judgment) (citation and internal quotation marks omitted); see also U.S. Const. art. I, ¬ß 1.","Article I Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; To provide for the punishment of counterfeiting the securities and current coin of the United States; To establish post offices and post roads; To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; To constitute tribunals inferior to the Supreme Court; To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.","See U.S. Const. art. I, ¬ß 9, cl. 7 (""No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.""); Office of Pers. Mgmt. v. Richmond , 496 U.S. 414, 424, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) (""[T]he straightforward and explicit command of the Appropriations Clause[ ] '[is] simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.' "" (quoting Cincinnati Soap Co. v. United States , 301 U.S. 308, 321, 57 S.Ct. 764, 81 L.Ed. 1122 (1937) ) ); see also 13 U.S.C. ¬ß 21(a)(1) (""The Bureau shall be headed by a Director of the Census, appointed by the President, by and with the advice and consent of the Senate ...."" (emphasis added) ); 13 U.S.C. ¬ß 23(a) (""The Secretary may establish , at rates of compensation to be fixed by him ..., as many temporary positions as may be necessary to meet the requirements of the work provided for by law."" (emphasis added) ); Rochester Pure Waters Dist. v. E.P.A. , 960 F.2d 180, 185 (D.C. Cir. 1992) (""Congress has 'absolute control of the moneys of the United States.' The Appropriations Clause of the Constitution vests Congress with exclusive power over the federal purse ...."" (quoting Harrington v. Bush, 553 F.2d 190, 194 n.7 (D.C. Cir. 1977) (citation and internal quotation marks omitted) ) ).","Article III of the Constitution vests ""[t]he judicial Power of the United States"" in the ""supreme Court"" and the lower federal courts established by Congress. ¬ß 1. ""[T]he judicial power is, fundamentally, the power to render judgments in individual cases"" or controversies that are properly before the court. Murphy v. National Collegiate Athletic Assn. , 584 U. S. ----, --- - ----, 138 S.Ct. 1461, 1485-1486, 200 L.Ed.2d 854 (2018) (THOMAS, J., concurring); see also Plaut v. Spendthrift Farm, Inc. , 514 U.S. 211, 219, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) ("" '[A] ""judicial Power"" is one to render dispositive judgments' ""); Baude, The Judgment Power, 96 Geo. L. J. 1807, 1815-1816 (2008). ""[T]he power exercised is that of ascertaining and declaring the law applicable to the controversy."" Massachusetts v. Mellon , 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). In the context of a constitutional challenge, ""[i]t amounts to little more than the negative power to disregard an unconstitutional enactment."" Ibid. ; see also Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 936 (2018). Thus, if a party argues that a statute and the Constitution conflict, ""then courts must resolve that dispute and, ... follow the higher law of the Constitution."" Murphy , 584 U. S., at ----, 138 S.Ct., at 1486 (THOMAS, J., concurring).","B. Board Members Are ""Officers of the United States"" Subject to the Appointments Clause","The principle legal concepts referenced in the provided passages center mainly around the distinction between Article III judges and other types of federal officers appointed under Articles I and II of the Constitution. Article III Section 1 establishes that judges of the supreme and inferior courts hold their offices during good behavior, and their compensation cannot be diminished during their time in office. This protection, however, extends specifically to judges defined under Article III, who have life tenure and salary protection. Article II outlines the Appointments Clause, distinguishing between principal officers, appointed by the President with Senate consent, and inferior officers, which Congress can give the appointment power to various entities. This clause ensures executive accountability and administrative convenience.

Congress has power under Article I Section 8 to constitute tribunals inferior to the Supreme Court, which indicates it can create and reorganize non-Article III tribunals without breaching constitutional protections afforded to Article III judges. The passage also touches on historical interpretations and judiciary's essential attributes, reinforcing separation of powers principles and contextualizing constraints on Congress's authority regarding executive appointments. 

This collective information is pertinent to assessing whether Hobson's role falls under Article III protections or if his employment is subject to the administrative reorganizations and compensatory limitations applicable to non-Article III positions.","The passage clarifies that judges appointed under Article III of the Constitution have lifetime appointments, provided they exhibit good behavior, and can only be removed through the specific process of impeachment by the House of Representatives followed by conviction by the Senate. This ensures their independence once appointed. However, these protections apply exclusively to Article III judges. Therefore, the passage suggests that if Hobson was not an Article III judge, the protections of lifetime tenure and fixed compensation do not apply to him, which is a critical point in resolving the legal question presented."
mbe_334,"An act of Congress provides that ""no federal court shall order the implementation of a public school desegregation plan that would require the transportation of any student to a school ocher than the school closest or next closest to his place of residence.""",Which of the following is the strongest argument against the constitutionality of the act?,This statute unduly burdens interstate commerce.,Congress cannot limit the authority of federal courts to hear and decide cases properly presented for decision.,The privileges and immunities clause of the Fourteenth Amendment prohibits Congress from limiting the forms of relief afforded by federal courts.,"The courts, not Congress, have the primary responsibility for defining the minimum requirements of the equal protection clause of the Fourteenth Amendment.",D,"Application of the Privileges and Immunities Clause to a particular instance of discrimination against out-of-state residents entails a two-step inquiry. As an initial matter, the court must decide whether the ordinance burdens one of those privileges and immunities protected by the Clause. Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371, 383, 98 S.Ct. 1852, 1860, 56 L.Ed.2d 354 (1978). Not all forms of discrimination against citizens of other States are constitutionally suspect. ‚ÄúSome distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States. Only with respect to those ‚Äòprivileges' and ‚Äòimmunities' bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally.‚Äù Ibid. As a threshold matter, then, we must determine whether an out-of-state resident's **1028 interest in employment on public works contracts in another State is sufficiently ‚Äúfundamental‚Äù to the promotion of interstate harmony so as to ‚Äúfall within the purview of the Privileges and Immunities Clause.‚Äù Id., at 388, 98 S.Ct., at 1862. See also *219 Canadian Northern Ry. Co. v. Eggen, 252 U.S. 553, 560, 40 S.Ct. 402, 403, 64 L.Ed. 713 (1920); Blake v. McClung, 172 U.S. 239, 248, 19 S.Ct. 165, 169, 43 L.Ed. 432 (1898).","Under the Equal Protection provisions of the Due Process Clause of the Fifth Amendment, Congress may not engage in any activity that promotes segregation. The Constitution generally prohibits only action by the government. In some cases, private action might be considered state action (e.g., where the government is entangled with the private action).","4. A state law that obstructs the purposes of Congress is impliedly preempted. Arizona, 567 U.S. at 399, 132 S.Ct. 2492. Courts determine if such obstruction exists by reference to congressional intent. Crosby, 530 U.S. at 373, 120 S.Ct. 2288.",1. Congress has provided that the antifraud provisions apply extraterritorially when significant steps are taken in the United States to further a violation or conduct occurring outside the United States has a foreseeable substantial effect within the United States,"If Congress evidences an intent to occupy a given field [i.e. , field preemption], any state law falling within that field is pre-empted. If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law [i.e. , conflict preemption], that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objective of Congress.","To the extent Congress has legislated in a particular field, the issue is more appropriately addressed in the context of preemption. If Congress has not acted or if preemption has not been found, a plaintiff may challenge a state law as impeding interstate commerce. See S. Pac. Co. v. Ariz. ex rel. Sullivan , 325 U.S. 761, 769, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945).","Legislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into “legislative spheres of autonomy previously reserved to the States.” Fitzpatrick v. Bitzer, 427 U.S. 445, 455, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976).","Although state classifications based on alienage are generally suspect, a state may reserve a government position for citizens if it is related to self-governance, involves policymaking, or requires exercise of important discretionary power over citizens. In these cases, only a rationality test is used. A public school teacher at the primary and secondary school level performs an important governmental function (e.g., he influences students' attitudes about government, the political process, citizenship, etc.), and therefore the exclusion of aliens is rationally related to the state's interest in furthering educational goals. [Ambach v. Norwick (1979)]","In general, three types of preemption exist: (1) express preemption, where Congress has expressly preempted local law; (2) field preemption, where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law, and (3) conflict preemption, where local law conflicts with federal law such that it is impossible for a party to comply with both or the local law is an obstacle to the achievement of federal objectives.","The majority barely acknowledges the play-in-the-joints doctrine here. It holds that the Free Exercise Clause forbids a State to draw any distinction between secular and religious uses of government aid to private schools that is not required by the Establishment Clause. The majority's approach and its conclusion in this case, I fear, risk the kind of entanglement and conflict that the Religion Clauses are intended to prevent. I consequently dissent.","In other words, if there is no clear Congressional intent for extraterritoriality, the Court must determine (1) the statute's focus and (2) whether the conduct relevant to the focus occurred in the United States. Id.","The passages most relevant to assessing the constitutionality of the act in question primarily address the limitations on congressional authority regarding federal court procedures and the interpretation of the Equal Protection Clause of the Fourteenth Amendment.

1. **Equal Protection Clause and Federal Courts**: It is established that Congress cannot engage in activities that promote segregation, as indicated under the Equal Protection provisions of the Due Process Clause of the Fifth Amendment. The Constitution generally aims to prevent government action that violates equal protection, highlighting the critical role of constitutional protections against segregative actions.

2. **Court Authority**: Courts have a primary responsibility to define the requirements of the Equal Protection Clause, suggesting that Congress may not have the authority to limit judicial actions that ensure constitutional rights, including ordering desegregation plans that might involve student transportation to achieve equal protection.

3. **Congressional Intent and Preemption**: When analyzing conflicts between federal actions and congressional purposes, courts reference congressional intent. If an act of Congress obstructs the implementation of constitutional principles, such as equal protection in public schools, it can be seen as improperly limiting judicial authority, thus raising constitutional concerns regarding preemption and legislative overreach into judicial functions.

In summary, the strongest argument against the constitutionality of the act is likely rooted in the principle that the courts have the primary responsibility to define the minimum requirements of the Equal Protection Clause of the Fourteenth Amendment, which aligns with the separation of powers and prevents Congress from unduly limiting judicial authority in desegregation matters.","An equal-protection claim merits strict scrutiny, our most exacting inquiry, only if the state-crafted classification disadvantages a suspect class or ""impermissibly interferes"" with a fundamental right. Segovia v. United States , 880 F.3d 384, 390 (7th Cir. 2018). Otherwise rational-basis review governs. See Armour v. City of Indianapolis, Ind. , 566 U.S. 673, 680, 132 S.Ct. 2073, 182 L.Ed.2d 998 (2012) ; Hooper v. Bernalillo Cty. Assessor , 472 U.S. 612, 618, 105 S.Ct. 2862, 86 L.Ed.2d 487 (1985). This case does not involve a suspect class, like race, and neither education nor free transportation to school is a fundamental right. Kadrmas v. Dickinson Pub. Sch. , 487 U.S. 450, 457-62, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988) ; Plyler v. Doe , 457 U.S. 202, 223, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ; San Antonio Indep. Sch. Dist. v. Rodriguez , 411 U.S. 1, 33-35, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) ; Racine Charter One, Inc. v. Racine Unified Sch. Dist. , 424 F.3d 677, 690 n.4 (7th Cir. 2005).",‚Ä¢ 20 U.S.C. ¬ß 1705 (Assignment on Neighborhood Basis Not a Denial of Equal Educational Opportunity),"Although Benner did not articulate his concern in precise legal language, a fair reading of his testimony shows that he was relying on well-established law holding that, by and large, it is illegal for public schools to treat students differently based solely on the color of their skin. See, e.g. , Parents Involved in Comty. Schools v. Seattle Sch. Dist. No. 1 , 551 U.S. 701, 747, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007) (holding that school district could not rely solely on race in allocating students to various schools in the district, and noting that ""the Fourteenth Amendment [to the U.S. Constitution] prevents states from according differential treatment to American children on the basis of their color or race""); Alexander v. Sandoval , 532 U.S. 275, 280-81, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (explaining that Title VI of the Civil Rights Act of 1964 bars recipients of federal funds, which could include school districts, from intentionally discriminating on the basis of race). Indeed, in his brief, Benner points out that at least one federal circuit court has specifically stated that ""racial disciplinary quotas"" are both illegal and inequitable. See People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205 , 111 F.3d 528, 528 (7th Cir. 1997) (Posner, J.,) (""Racial disciplinary quotas violate equity in its root sense. They entail either systematically overpunishing the innocent or systematically underpunishing the guilty. They place race at war with justice. They teach schoolchildren an unedifying lesson of racial entitlements. And they incidentally are inconsistent with another provision of the [at-issue desegregation] decree, which requires that discipline be administered without regard to race or ethnicity."").","See U.S. Const. amend. XIV, ¬ß 1 (providing that no state shall ""deny to any person within its jurisdiction the equal protection of the laws"").","An equal protection issue is involved. Under the Equal Protection Clause, state classifications based on alienage are subject to strict scrutiny and so must serve a compelling interest to be constitutional.","The Fourteenth Amendment prohibits a state from ""deny[ing] to any person within its jurisdiction the equal protection of the laws."" U.S. Const. amend. XIV, ¬ß 1. Municipalities constitute the state for purposes of Fourteenth Amendment protections. See, e.g. , City of Richmond v. J.A. Croson Co. , 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (evaluating equal protection claim in context of city's adoption of minority business utilization plan). In applying the Equal Protection Clause, courts will not unnecessarily interfere with the local legislative process, and ""[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest."" City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citations omitted). ""[T]he Court hardly ever strikes down a policy as illegitimate under rational basis scrutiny. On the few occasions [the Court] ha[s] done so, a common thread has been that the laws at issue lack any purpose other than a 'bare...desire to harm a politically unpopular group.' "" Trump v. Hawaii , --- U.S. ----, 138 S.Ct. 2392, 2420, 201 L.Ed.2d 775 (2018) (omission in original) (quoting Dep't. of Agric. v. Moreno , 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973) ).",VII. Deference to Prosecutorial Discretion is Unwarranted When Such Discretion Results in an Equal Protection Violation,A. The Enacted Plan Violates Plaintiffs' Fourteenth Amendment and First Amendment Rights by Diluting the Weight of Democratic Voters' Votes,"See U.S. Const. amend XIV, ¬ß 1 (""No state shall ... deny to any person within its jurisdiction the equal protection of the laws."").","Second, judges determine the meaning of equal protection, which regularly implicates political, policy, and appropriations issues without absolute or exactingly clear judicial standards. It is fitting to use Brown v. Board of Education , 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), as an example. The Court there held that segregated schools are ""inherently unequal"" and, therefore, violate equal protection. Id. at 495, 74 S.Ct. 686. Of course, Brown had wide-ranging effects on appropriations by Congress and state legislatures across the country. Moreover, the case settled an abhorrent political debate. But, in ordering desegregation, the Court could not set out exactingly detailed judicial standards on how the process would occur-that was left for state school officials, legislatures, and courts to sort out. Brown v. Bd. of Educ. (Brown II ), 349 U.S. 294, 299-300, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). The Court understood that there was no one-size-fits-all judicial standard on the most effective manner of desegregation, so it ordered state courts to supervise that process-which most certainly entailed many policy decisions-to determine compliance. Brown II , 349 U.S. at 299-300, 75 S.Ct. 753. A similar circumstance exists here. Petitioners ask this Court to review certain actions, performances, and conduct of the school system to decide whether it is within constitutional parameters. They do not ask us to make any of the myriad policy decisions that go into the operation of a school system; rather, they seek review of the system itself to determine if it meets constitutional muster. Thus, any suggestion that the express Florida constitutional right to an education is nonjusticiable cannot in my view withstand scrutiny.","The provided passages suggest that the strongest argument against the constitutionality of the act revolves around the principle that the courts, not Congress, have the primary responsibility for defining and enforcing the requirements of the equal protection clause of the Fourteenth Amendment. The passages emphasize various roles of the judiciary in interpreting equal protection, citing landmark cases such as *Brown v. Board of Education* where the judiciary determined the constitutionality and appropriate remedies for segregation. This underscores the judiciary's established role in defining how equal protection applies to public school desegregation. Thus, an argument that Congress overstepped its bounds by restricting judicial authority to prescribe desegregation remedies—specifically, the transportation of students—aligns with this principle.","The passage discusses the application of the Privileges and Immunities Clause, emphasizing a two-step inquiry to determine if an ordinance burdens the rights protected by the Clause. The court must first decide if the discrimination against out-of-state residents involves a privilege or immunity fundamental to promoting interstate harmony and the union of states. If so, the state must treat resident and nonresident citizens equally regarding that privilege or immunity. This principle is relevant to assessing the constitutionality of laws that may treat different groups differently."
mbe_389,"All lawyers practicing in the state of Erewhon must be members of the State Bar Association, by order of the state supreme court. Several state officials serve on the Bar Association's Board of Bar Governors. The Board of Bar Governors authorizes the payment of dues for two staff members to the Cosmopolitan Club, a private dining club licensed to sell alcohol beverages. The Cosmopolitan Club is frequented by affluent businessmen and professionals and by legislators. It is generally known that the purpose of the membership of the Bar Association staff is to enable them to go where members of the ""elite"" meet and to lobby for legislation in which the Bar Association is interested. The State Bar Association has numerous committees and subcommittees concerned with family law, real estate law, unauthorized practice, etc., and its recommendations often influence state policy. Some committee meetings are held at the Cosmopolitan Club. The club is known to have rules which restrict membership by race, religion, and sex. Plaintiffs, husband and wife, who are members of the Erewhon Bar Association, petition the Board of Bar Governors to adopt a resolution prohibiting the payment of club dues to and the holding of meetings of the Bar Association or its committees at places which discriminate on the basis of race, religion, or sex. After substantial public discussion, the Board of Bar Governors, by a close vote, fails to pass such a resolution. These events receive extensive coverage in the local newspapers. Plaintiffs bring an action in federal court seeking an injunction against such payments and the holding of meetings in such places as the Cosmopolitan Club.",The strongest argument for plaintiffs is,"private rights to discriminate and associate freely must defer to a public interest against discrimination on the basis of race, religion, or sex","the failure of the State Bar Association to pass a resolution forbidding discrimination on the basis of race, religion, or sex constitutes a denial of equal protection","the State Bar Association is an agency of the state and its payment of dues to such private clubs promotes discrimination on the basis of race, religion, and sex","the State Bar Association's payment of dues to such private clubs promotes discrimination on the basis of race, religion, and sex",C,"When the government expressly classifies persons on the basis of race or national origin, however, its action is ‚Äú ‚Äòimmediately suspect.‚Äô ‚Äù Johnson v. California, 543 U.S. 499, 125 S.Ct. 1141, 1148, 160 L.Ed.2d 949 (2005) (quoting Shaw v. Reno, 509 U.S. 630, 642, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993)). A plaintiff in such a lawsuit need not make an extrinsic showing of discriminatory animus or a discriminatory effect to trigger strict scrutiny. ‚ÄúNo inquiry into legislative purpose is necessary when the racial classification appears on the face of the statute.‚Äù Shaw, 509 U.S. at 642, 113 S.Ct. 2816. The burden of proof shifts, strict scrutiny applies, and ‚Äú[u]nder strict scrutiny, the government [defending the constitutionality of the law] has the burden of proving that racial classifications ‚Äòare narrowly tailored measures that further compelling governmental interests.‚Äô ‚Äù Johnson, 125 S.Ct. at 1146 (quoting Adarand, 515 U.S. at 227, 115 S.Ct. 2097). As noted above, the Supreme Court has explained that we ‚Äú ‚Äòapply strict scrutiny to all racial classifications to ‚Äúsmoke out‚Äù illegitimate uses of race by assuring that government is pursuing a goal important enough to warrant use of a highly suspect tool.‚Äô ‚Äù Id. (quoting Croson, 488 U.S. at 493, 109 S.Ct. 706 (plurality opinion)) (emphasis in Johnson; alteration incorporated).","Also, other courts have declined to apply public meeting laws to nonquorum gatherings intended to obtain information or voice opinions. See, e.g., id. ; Freedom Newspapers v. Orange Cty. , 6 Cal.4th 821, 863 P.2d 218, 25 Cal.Rptr.2d 148 (1993) [ (committee composed solely of board members numbering less than quorum of board was excluded from open meeting requirements; committee's function was to review various matters related to business of board and to make recommendations to full board for action; full board considered committee's recommendations in public meetings, at which time there was opportunity for full public discussion and debate; and committee did not have any decisionmaking authority) ]; Delaware Solid Waste Authority v. News-Journal , 480 A.2d 628 (Del. 1984) [ (standing committee composed solely of directors numbering less than quorum of directors for Delaware Solid Waste Authority (Authority) are not subject to open meetings laws; standing committee investigated Authority operations and then reported its conclusions and recommendations, if any, to full board; all meetings of Authority, where work of committees is discussed, are open to public; after debate, Authority as whole publicly renders policy decision, and publicly takes steps to implement it; and throughout its meetings, Authority is open to public questions, comment, and criticism) ]; Lyon v. Lake County , 765 So.2d 785 (Fla. App. 2000) [ (when committee has been established for and conducts only information gathering and reporting, activities of that committee are not subject to open meetings laws) ]; Mason v. Vision Iowa Bd. , 700 N.W.2d 349 (Iowa 2005) [ (committee not subject to open meetings laws; committee did not have policymaking duties, but, rather, it made recommendations and then board made ultimate decision on course of action to be taken) ]. It is true that we have been concerned with a public body's perfunctorily approving a decision in a public meeting that was apparently reached in a private meeting. ""The prohibition against decisions or formal action in a closed session also proscribes ... rubberstamping or reenacting by a pro forma vote any decision reached during a closed session."" Grein v. Board of Education , 216 Neb. 158, 168, 343 N.W.2d 718, 724 (1984).","forums: Overview A forum in First Amendment law refers to the place in which a speaker speaks. The First Amendment's protections regarding the right to speak and assemble will vary based on the speakers’ chosen forum. In Perry Educ. Ass’n v. Perry Educators’ Ass’n, 460 U.S. 37 (1983), the Supreme Court divided forums into three types: traditional public forums, designated forums, and nonpublic forums.  Traditional Public Forums Traditional public forums include public parks, sidewalks and areas that have been traditionally open to political speech and debate. Speakers in these areas enjoy the strongest First Amendment protections. In traditional public forums, the government may not discriminate against speakers based on the speakers' views. Doing so is called viewpoint discrimination, which is prohibited under the First Amendment. The government may, however, subject speech to reasonable, content-neutral restrictions on its time, place, and manner. When considering government restrictions of speech in traditional public forums, courts use strict scrutiny. When the government restricts speech in a traditional public forum, strict scrutiny dictates that restrictions are allowed only if they serve a compelling state interest and are narrowly tailored to meet the needs of that interest. Designated Public Forums Sometimes, the government opens public property for public expression even though the public property is not a traditional public forum. These are designated public forums. After opening a designated public forum, the government is not obligated to keep it open. However, as long as the government does keep the forum open, speech in the forum receives the same First Amendment protections as speech in traditional public forums. Examples of designated public forums include municipal theaters and meeting rooms at state universities. Limited Forums A limited forum is a type of a designated public forum. Here, the government limits access to a designated public forum to certain classes or types of speech. In Good News Club v. Milford Central School, 533 U.S. 98 (2001), the Supreme Court held that in a “limited forum,” the government may discriminate against classes of speakers or types of speech. However, the government is still prohibited from engaging in viewpoint discrimination. For example, the government may limit access to public school meeting rooms by only allowing speakers conducting school-related activities. It may not, however, exclude speakers from a religious group simply because they intend to express religious views.  Nonpublic Forums Nonpublic forums are forums for public speech that are neither traditional public forums nor designated public forums.","The public has the right to attend and speak at meetings of the public bodies. § 84-1412(1). Any person in attendance may videotape or record all or any part of a meeting of the public body. Id. However, the public body may make and enforce reasonable rules and regulations regarding the conduct of persons attending, speaking at, videotaping, or recording its meetings. § 84-1412(2). A body may not be required to allow citizens to speak at each meeting, but it may not forbid public participation at all meetings. Id. No public body shall, for the purpose of circumventing the Open Meetings Act, hold a meeting in a place known by the body to be too small to accommodate the anticipated audience. § 84-1412(4).","Idaho Code section 3-408 provides that the board of commissioners of the Idaho State Bar (board) ""shall formulate rules governing the conduct of all persons admitted to practice and shall investigate and pass upon all complaints that may be made concerning the professional conduct of any person admitted to the practice of the law."" See also I.C. § 3-412 (""The board of commissioners shall establish rules, subject to the approval of the Supreme Court, governing procedure in cases and investigations involving alleged misconduct of members of the Idaho State Bar, and to make and create committees for the purpose of investigating complaints and charges, which committees may be empowered to recommend to the board discipline ....""). Accordingly, the board promulgated the Idaho Bar Commission Rules, which established the ""requirements, qualifications and procedures for ... maintenance of membership in the Idaho State Bar."" I.B.C.R. 101. With those rules, the board has designed a comprehensive scheme for submitting complaints alleging ethical violations, investigating those complaints, imposing sanctions where warranted, and for appealing an adverse decision to the Idaho Supreme Court. See I.B.C.R. 500, et seq. Thus, the district court appropriately recognized that whether to issue sanctions for an ethical violation is a decision for the Idaho State Bar.","McBurney v. Young , 569 U.S. 221, 226, 133 S.Ct. 1709, 185 L.Ed.2d 758 (2013) (internal citations and quotations omitted). Whether differential treatment of out-of-state residents violates the Privileges and Immunities Clause involves a two-part inquiry: (1) whether the state's law discriminates against out-of-state residents with regard to a privilege or immunity protected by the Clause, and (2) if so, whether sufficient justification exists for the discrimination. Minnesota ex rel. Hatch v. Hoeven , 456 F.3d 826, 834 (8th Cir. 2006) (citing United Bldg. & Constr. Trades Council of Camden County & Vicinity v. Mayor & Council of the City of Camden , 465 U.S. 208, 218, 221-23, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984) ). Generally, the privilege of engaging in a trade, business or occupation is protected by the Privileges and Immunities Clause. McBurney , 569 U.S. at 227, 133 S.Ct. 1709. However, the privilege of engaging in the occupation of selling alcohol is not protected by the Privileges and Immunities Clause, due to the Twenty-first Amendment's ""broad grant of power to the states ... to implement [multi]-tier liquor distribution systems which disparately affect non-resident wholesalers and retailers."" Southern Wine , 2012 WL 1934408, slip op. at *5 (W.D.Mo. May 29, 2012), aff'd , 731 F.3d 799 (8th Cir. 2013) (citing Steamers Service Co. v. Wright , 505 S.W.2d 65, 68 (Mo.1974) (""the liquor business does not stand upon the same plane, in the eyes of the law, with other commercial occupations ... and is thereby separated or removed from the natural rights, privileges and immunities of the citizen."") ).","framework for regulating other forms of electronic and telephonic commercial solicitation.  See also U.S. State Anti-Spam Laws: Introduction and Broader Framework. III.  Constitutional Protections for Commercial Speech: The First Amendment The U.S. Supreme Court has repeatedly affirmed that the First Amendment protects ""commercial speech,"" along with other types of speech.  See Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557 (1980).  Commercial speech has been defined by the Supreme Court as ""expression related solely to the economic interests of the speaker and its audience.""  See id. at 561.  This protection extends to state regulations through the Fourteenth Amendment.  See id. Beyond protecting the economic interests of the speaker, the First Amendment protection for commercial speech has been premised by the Supreme Court on consumer interests in obtaining commercial information, and ""the societal interest in the fullest possible dissemination of information.""  Central Hudson, 447 U.S. at 561-62. Because the First Amendment has been held to protect commercial speech, there are limits on the extent to which commercial solicitation can be regulated.  However, the constitutional protection for commercial speech under the First Amendment is lower than the protection for other types of speech.  See Central Hudson, 447 U.S. at 562-63.  This means that regulations can limit commercial speech as long as the regulation is ""designed carefully"" to achieve a ""substantial"" state objective.  See id. at 564-66.  If commercial speech is unlawful or misleading, it won't be protected by the First Amendment.  See id. at 566. These basic principles, articulated as a four-part test in Central Hudson, were applied to the University of Texas at Austin's IT policy pertaining to spam in White Buffalo Ventures v. University of Texas at Austin, 420 F.3d 366, 374-78 (5th Cir. 2005).  While the Fifth Circuit was unpersuaded that the IT policy was necessary to preserve the efficiency of UT Austin email servers, it agreed that the policy was no more extensive than necessary to preserve user efficiency.  See id.  For this reason, the court upheld the constitutionality of UT Austin's IT policy.  See id. at 378.","Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. Reed, 135 S.Ct. at 2227 ; see also Biondolillo, 164 N.H. at 374, 55 A.3d 1034. On the other hand, a law is a content-neutral speech regulation if it is ""justified without reference to the content of the regulated speech."" City of Renton v.Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (quotation and emphasis omitted). We agree with the trial court that the ordinance is not content-based. The ordinance is, on its face, a general prohibition on public nudity. See Pap's A.M., 529 U.S. at 290, 120 S.Ct. 1382 (concluding that ordinance banning public nudity was not related to the suppression of expression). As the United States District Court for the District of Massachusetts ruled regarding a National Park Service regulation prohibiting public nudity at the seashore, the ordinance is ""plainly not based upon either the content or subject matter of speech."" Craft, 683 F.Supp. at 293 (quotations omitted). There is nothing in the text of the ordinance itself that suggests ""that one group's viewpoint is to be preferred at the expense of others."" Id. (quotation omitted). It does not target nudity meant to advance women's rights or desexualize the female nipple. Rather, it prohibits all nudity, regardless of whether the nudity is accompanied by expressive activity. See Pap's A.M., 529 U.S. at 290, 120 S.Ct. 1382. In that sense, the ordinance merely regulates the manner in which activities may be carried out in that they cannot be carried out in the nude. We, therefore, conclude that the ordinance is content-neutral.","The first issue before this court is whether the House's rule governing access to the press area on the floor of the House while the House is in session is an integral part of the communicative and deliberative processes of the House and shielded from challenge by legislative immunity. House Rule 5 restricts the issuance of media credentials and the accompanying right to sit on the House floor to employees of an editorially-independent entity that is ""principally a general news organization."" House Rule 5 is ""part of the legislative process,"" designed to protect the integrity of the legislative process more broadly by preventing those not associated with a general news organization from accessing the floor of the House during deliberations. A rule restricting access to the House floor and to the railing surrounding members' desks ""necessarily affects the manner in which the House conducts its most characteristic legislative functions, e.g. , debating and voting,"" and ""comprises 'an integral part of the deliberative and communicative processes.' "" Harwood , 69 F.3d at 632 (quoting Gravel , 408 U.S. at 625, 92 S.Ct. 2614 ). The doctrine of legislative immunity applies to the promulgation of House Rule 5, and Empower Texans' facial challenge to the language of House Rule 5 is barred by legislative immunity.","Regulating Mass Media In US West, Inc. v. United States, 48 F.3d 1092 (9th Cir. 1994), the Ninth Circuit Court of Appeals used intermediate scrutiny for a federal statute which prohibited telephone companies from providing video programming to subscribers. The US West court held here that in order to pass the first prong (important government interest prong) of intermediate scrutiny for a First Amendment issue, the government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” The US West court also held that for the government to pass the second prong (means test) of intermediate scrutiny for a First Amendment issue, the regulation must leave open ""ample alternative channels of communication."" Regulating Adult Entertainment In Am. Library Ass'n v. Reno, 33 F.3d 78 (D.C. Cir. 1994), the court applied intermediate scrutiny to a statute which required ""producers of materials depicting sexually explicit acts to maintain certain records documenting the names and ages of the persons portrayed and to attach statements to the materials indicating where the records are located."" The court found that if the regulation was related to the content of the speech of the individual materials, then strict scrutiny would apply. But because the government was regulating the broad category of adult videos without regard for the content of any particular video (i.e. ""content-neutral regulations""), the court found intermediate scrutiny to be the proper scrutiny here. In MD II Entertainment, Inc. v. Dallas, 28 F.3d 492 n. 21 (5th Cir. 1994), there was a city ordinance  which regulated topless bars and similar establishments by establishing zoning restrictions specific to these sort of adult entertainment establishments. The court held that because this statute ""govern[s] content-neutral regulations of commercial speech,"" intermediate scrutiny is the appropriate test to use. Regulating Highway Signs In Rappa v. New Caste County, 18 F. 3d 1043 (3d Cir.","Citizens United contended that the film does not qualify as an “electioneering communication,” and thus BRCA does not apply. The Court rejected Citizens United’s argument by finding that Hillary is an appeal to vote against Clinton and qualifies as “the functional equivalent of express advocacy.” Therefore, under the test in McConnell, BCRA prohibits Citizens United from airing or advertising the film, Hillary. After deciding that BCRA applies, the Court considered whether the provisions in BCRA that prohibits corporations and unions from using their general treasury funds to make independent expenditures for “electioneering communication” is facially constitutional under the free speech clause of the First Amendment. (Compare: unconstitutional). The free speech clause of the First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” The Constitution requires that laws that burden political speech are subject to strict scrutiny, which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest” (see Federal Election Comm’n v. Wisconsin Right to Life, Inc.). After holding that BCRA’s prohibition on corporate independent expenditure burdens political speech, the Court turned to whether the prohibition “furthers a compelling interest and is narrowly tailored to achieve that interest.” The Court first looked at Buckley v. Valeo (1976) and First National Bank of Boston v. Bellotti (1978). These two cases recognized only “the prevention of [quid pro quo] corruption and the appearance of corruption” as a compelling governmental interest. In addition, these two cases prohibited the Government from restricting political speech based on the speaker’s corporate identity. In Austin, however, the Court found that an anti-distortion interest as another compelling governmental interest in limiting political speech. It held that the Government had a compelling interest in preventing the “distortion effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” In addition, Austin permitted restrictions based on the speaker’s corporate identity. To address the conflicting lines of precedent, the Court turned to the purpose of political speech.","The legal question involves whether the State Bar Association of Erewhon can authorize payments for membership dues to a private club that discriminates based on race, religion, or sex. The passages highlight several key legal principles and rules:

1. **State Agency's Obligations**: The Idaho Code passage outlines that state bar associations have the authority to govern the conduct of their members and establish rules subject to the approval of the state supreme court. This implies that state bar associations have responsibilities both to their members and to public standards of conduct.

2. **Equal Protection and Discrimination**: Constitutions at federal and state levels generally prohibit discrimination based on race, religion, or sex by state actors. The failure of the State Bar Association to adopt anti-discrimination measures could be seen as a tacit endorsement of discriminatory practices, potentially violating equal protection principles.

3. **Public Forum Doctrine**: The Perry Education Ass’n case differentiates between traditional public forums, designated public forums, and nonpublic forums. While discrimination in traditional public forums is heavily restricted, private entities might not be subject to the same degree of scrutiny, unless there is state action endorsing or supporting the discrimination.

4. **Content-Neutral Restrictions**: The Reed v. Town of Gilbert case mentions that content-neutral laws regulating speech must be justified without reference to the content of the speech. However, state support for entities practicing discrimination (even if indirectly through dues) could be argued as contradictory to public interest mandates.

5. **Legislative and Agency Immunity**: The principle of legislative immunity, as highlighted by House Rule 5, suggests that rules inherent to the legislative process can be shielded from external challenges, indicating that internal decisions (like Bar Association memberships) can be complex to contest legally.

6. **Intermediate and Strict Scrutiny**: Cases such as US West and Citizens United note that any laws restricting speech (including potentially discriminatory practices in private settings) must serve a compelling governmental interest and be narrowly tailored to achieve that interest. The strict or intermediate scrutiny tests require validating the substantial state interests against the backdrop of nondiscrimination principles.

In summary, these passages collectively emphasize the tension between private associative rights and public non-discrimination interests, highlighting the potential conflict in the State Bar Association’s actions and policies.","The Equal Protection Clause of the Fourteenth Amendment bars state actors from ""deny[ing] to any person within its jurisdiction the equal protection of the laws."" U.S. Const. amend. XIV. If a state actor ""classifies"" between similarly-situated persons ""on the basis of a suspect class, such as race, or 'impinges on personal rights protected by the Constitution,' "" such as the First Amendment's free speech guarantee, the Equal Protection Clause requires courts to subject that action to ""strict scrutiny."" Schmidt v. Ramsey , 860 F.3d 1038, 1047 (8th Cir. 2017) (quoting City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) ). Under that demanding standard of review, courts must only uphold the state actor's classification if it is ""suitably tailored to serve a compelling state interest."" Id. The Equal Protection Clause and the First Amendment's prohibition on viewpoint discrimination are ""closely intertwined,"" as, under either constitutional provision, ""government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views."" Police Dep't of Chicago v. Mosley , 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). As such, some out-of-circuit courts have argued that an Equal Protection claim ""rise[s] and fall[s]"" with the viewpoint discrimination prong of a plaintiff's as-applied First Amendment claim. Ray , 699 F.3d at 1067 (denying motion to dismiss Equal Protection claim where plaintiff stated an as-applied First Amendment claim, and observing that the Supreme Court ""has noted that one analysis will often control both claims"") (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n , 460 U.S. 37, 54, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) ); accord Bible Believers v. Wayne Cty. , 805 F.3d 228, 256-57 (6th Cir. 2015) (same); Young Am.'s Found. , 2018 WL 1947766, at *11 (same).",1. The Equal Protection Clause Allegations Fail to State a Claim,"Plaintiff claims that Defendant's actions violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Specifically, the Complaint alleges Defendant selectively enforced its Civil Service Rules as well as its Social Media Policy against Plaintiff, creating a double standard which discriminates against the Plaintiff in violation of the Equal Protection Clause of the United States Constitution. (Doc. No. 1 at ¬∂ 74). Further, the Complaint specifically states, ""[t]he Supreme Court has recognized successful equal protection claims brought by a 'class of one,' in which a plaintiff alleges that the government has intentionally and without a rational basis treated her differently from others who are similarly situated."" (Id. at ¬∂ 73).","""The Equal Protection Clause of the Fourteenth Amendment commands that no state shall 'deny to any person within its jurisdiction the equal protection of the laws[.]' "" City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citing Plyler v. Doe , 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ). Broadly speaking, it requires that state officials treat all persons alike, under like circumstances and like conditions. Cleburne , 473 U.S. at 439, 105 S.Ct. 3249 ; see also Rondigo, L.L.C. v. Twp. of Richmond , 641 F.3d 673, 682 (6th Cir. 2011). When officials treat similar individuals differently, the Equal Protection Clause demands a justification. Engquist v. Or. Dep't of Agric. , 553 U.S. 591, 602, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008). But because all state action tends to disfavor some more than others, courts take this practical reality into account by evaluating state action under differing levels of scrutiny. See Breck v. Michigan , 203 F.3d 392, 395 (6th Cir. 2000). If official conduct ""neither burdens a fundamental right nor targets a suspect class,"" courts will uphold it ""so long as it bears a rational relation to some legitimate end."" Romer v. Evans , 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) ; see also Radvansky v. City of Olmsted Falls , 395 F.3d 291, 312 (6th Cir. 2005) (citing Vacco v. Quill , 521 U.S. 793, 799, 117 S.Ct. 2293, 138 L.Ed.2d 834 (1997) ).","See U.S. Const. amend. XIV, ¬ß 1 (providing that no state shall ""deny to any person within its jurisdiction the equal protection of the laws"").","Plaintiffs argue that the City's policy violates the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause requires that ""all persons similarly situated ... be treated alike."" City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). To establish an equal protection claim, Plaintiffs must allege facts showing that ""(1) the person, compared with others similarly situated, was selectively restricted; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person."" Davis v. Coakley, 802 F.3d 128, 132-33 (1st Cir. 2015) (citation omitted).","See U.S. Const. amend XIV, ¬ß 1 (""No state shall ... deny to any person within its jurisdiction the equal protection of the laws."").","The Equal Protection Clause essentially directs that all similarly situated persons should be treated alike. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Although certain classifications - such as race or national origin - are subject to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest, here plaintiff does not allege that she belongs to a suspect class. See, e.g., McNeal v. Houston, No. 06-2565-KHV, 2007 WL 1032373, at *1 (D. Kan. April 5, 2007). Thus, rational basis scrutiny applies. See City of Cleburne, 473 U.S. at 442-46, 105 S.Ct. 3249 ; Davoll v. Webb, 194 F.3d 1116, 1145 (10th Cir. 1999). Under the rational basis test, the Court must uphold the policy if any reasonably conceivable set of facts could provide a rational basis for the classification. Spragens v. Shalala, 36 F.3d 947, 951 n.3 (10th Cir. 1994) (quoting FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) ). Here, in light of the statutory and legal authority which provide that a county lacks authority to override an elected official's decision to discharge personnel, defendants clearly had a rational basis to treat plaintiff differently from employees of non-elected officials. The Court therefore dismisses the equal protection claim for failure to state a claim upon which relief can be granted.","The Equal Protection Clause of the Fourteenth Amendment provides that no State shall ""deny to any person within its jurisdiction the equal protection of the laws."" U.S. Const. amend. XIV, ¬ß 1. It is ""essentially a direction that all persons similarly situated should be treated alike,"" A.M. ex rel. F.M. v. Holmes , 830 F.3d 1123, 1166 (10th Cir. 2016) (internal quotation marks omitted), and is intended ""to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents,"" Vill. of Willowbrook v. Olech , 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam) (internal quotation marks omitted). An equal protection claim may be asserted with respect to a group or a ""class of one."" Holmes , 830 F.3d at 1166. A plaintiff who ""alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment"" states a claim for violation of her right to equal protection. Olech , 528 U.S. at 564, 120 S.Ct. 1073.","Of course, to establish an equal protection violation, a plaintiff must establish more than differential treatment alone-a discriminatory intent or purpose is required. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 264-65, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). But the Supreme Court has held that because the ""Equal Protection Clause was intended as a restriction on state legislative action inconsistent with elemental constitutional premises,"" we treat ""as presumptively invidious those classifications that disadvantage a 'suspect class,' or that impinge upon the exercise of a 'fundamental right.' "" Plyler v. Doe , 457 U.S. 202, 216-17, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (footnotes omitted). As a result, when the distinction ""adversely affects a 'suspect class,' such as one defined by race, alienage, or national origin, or invades a 'fundamental right,' such as speech or religious freedom, the law will be sustained only if it is 'suitably tailored to serve a compelling state interest.' "" Harbin-Bey v. Rutter , 420 F.3d 571, 576 (6th Cir. 2005) (quoting City of Cleburne v. Cleburne Living Ctr., Inc. , 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) ).","The provided passages highlight several key legal principles relevant to the plaintiffs' case regarding the State Bar Association's payment of dues to a discriminatory private club. The core principle discussed is the Equal Protection Clause of the Fourteenth Amendment, which mandates that state actors must not ""deny to any person within its jurisdiction the equal protection of the laws."" This clause prompts strict scrutiny when state actions classify individuals based on suspect classes like race, or when they impinge on fundamental rights. 

The passages explain that if officials treat individuals differently under like circumstances, they must provide a justification, particularly if such treatment involves suspect classifications (e.g., race, religion, sex) or fundamental rights. State actions must be ""suitably tailored to serve a compelling state interest"" to pass strict scrutiny, though rational basis review applies to non-suspect classifications, where actions are upheld if they serve a legitimate state interest.

Moreover, establishing an equal protection violation requires demonstrating not just differential treatment but also discriminatory intent. This can involve evidence that a state practice disadvantageously affects a suspect class or impinges on a fundamental right, necessitating a compelling justification for such actions.

These principles collectively underscore that state agencies like the Bar Association, comprised of state officials and holding significant influence over state policy, must justify practices implicating suspect classifications and fundamental rights to withstand constitutional scrutiny under the Equal Protection Clause.","The passage outlines that any government action classifying persons based on race or national origin is immediately suspect and subject to strict scrutiny, as established in cases like *Johnson v. California* and *Shaw v. Reno*. Under strict scrutiny, the government must prove that such racial classifications are narrowly tailored to serve a compelling governmental interest. This stringent standard aims to prevent illegitimate uses of race by ensuring that any racial classification is justified by a sufficiently important governmental objective."
mbe_563,,"Plaintiff challenged the constitutionality of a state tax law, alleging that it violated the equal protection clauses of both the United States Constitution and the state constitution. The state supreme court agreed and held the tax law to be invalid. It said: ""We hold that this state tax law violates the equal protection clause of the United States Constitution and also the equal protection clause of the state constitution because we interpret that provision of the state constitution to contain exactly the same prohibition against discriminatory legislation as is contained in the equal protection clause of the Fourteenth Amendment to the United States Constitution."" The state sought review of this decision in the United States Supreme Court, alleging that the state supreme court's determination of the federal constitutional issue was incorrect. How should the United States Supreme Court dispose of the case if it believes that this interpretation of the federal Constitution by the state supreme court raises an important federal question and is incorrect on the merits?","Reverse the state supreme court decision, because the equal protection clause of a state constitution must be construed by the state supreme court in a manner that is congruent with the meaning of the equal protection clause of the federal Constitution.","Reverse the state supreme court decision with respect to the equal protection clause of the federal Constitution and remand the case to the state supreme court for further proceedings, because the state and federal constitutional issues are so intertwined that the federal issue must be decided so that this case may be disposed of properly.","Refuse to review the decision of the state supreme court, because it is based on an adequate and independent ground of state law.","Refuse to review the decision of the state supreme court, because a state government may not seek review of decisions of its own courts in the United States Supreme Court.",B,"Where it appears by the record that the judgment of the State court might have been based either upon a law which would raise a question of repugnancy to the Constitution, laws, or treaties of the United States, or upon some other independent ground; and it appears that the court did, in fact, base its judgment on such independent ground, and not on the law raising the Federal question, this court will not take jurisdiction of the case, even though it might think the position of the State court an unsound one. But where it does not appear on which of the two grounds the judgment was based, then, if the independent ground on which it might have been based was a good and valid one, sufficient of itself to sustain the judgment, this court will not assume jurisdiction of the case; but if such independent ground was not a good and valid one, it will be presumed that the State court based its judgment on the law raising the Federal question, and this court will then take jurisdiction","Because the tax is unconstitutional under article VII, section 1, we decline to consider Shock's argument that the tax violates equal protection guarantees in the Washington and United States Constitutions; although, we note that statutes based on economic distinctions generally satisfy the rational basis test. See Welch v. Henry, 305 U.S. 134, 143-44, 59 S. Ct. 121, 83 L. Ed. 87 (1938) (income tax rate classifications do not violate the equal protection clause of the Fourteenth Amendment so long as ""reasonabl[y] relat[ed] to a legitimate end of governmental action""); accord Am. Legion Post # 149 v. Wash. State Dep't of Health, 164 Wash.2d 570, 609, 192 P.3d 306 (2008) (""Social and economic legislation that does not implicate a suspect class or fundamental right is presumed to be rational; this presumption may be overcome by a clear showing that the law is arbitrary and irrational."").","Tax Foundation argues that the State's interpretation of HRS § 248-2.6 violates the equal protection clauses of the state and federal constitutions. See Haw. Const. art. I, § 5 ; U.S. Const. amend. XIV. ""[T]he equal protection clauses of the United States and Hawai'i Constitutions mandate that all persons similarly situated shall be treated alike[.]"" DW Aina Lea Development, LLC v. Bridge Aina Lea, LLC., 134 Hawai'i 187, 218, 339 P.3d 685, 716 (2014) (quotation marks and brackets omitted). ""Equal protection jurisprudence has typically been concerned with governmental classifications that affect some groups of citizens differently than others."" Id. (quotation marks and brackets omitted). It is well-established that ""unless fundamental rights or suspect classifications are implicated, we will apply the rational basis standard of review in examining a denial of equal protection claim."" KNG Corp. v. Kim, 107 Hawai'i 73, 82, 110 P.3d 397, 406 (2005) (quoting Sandy Beach Def. Fund v. City Council, 70 Haw. 361, 380, 773 P.2d 250, 262 (1989) ) (emphasis omitted). The rational basis standard of review applies here because Tax Foundation does not allege that either a fundamental right or a suspect classification is implicated.","We next address the plaintiff's claim that the trial court had jurisdiction to entertain his complaint because he brought a claim pursuant to 42 U.S.C. § 1983, alleging due process and equal protection violations under the federal constitution. See Bush v. Gore , 531 U.S. 98, 104-105, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (""[h]aving once granted the right to vote on equal terms, the [s]tate may not, by later arbitrary and disparate treatment, value one person's vote over that of another""); Baker v. Carr , 369 U.S. 186, 208, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (""[a] citizen's right to a vote free of arbitrary impairment by state action has been judicially recognized as a right secured by the [c]onstitution""). Relying on, inter alia, Sullins v. Rodriguez , 281 Conn. 128, 913 A.2d 415 (2007), and Fetterman v. University of Connecticut , 192 Conn. 539, 473 A.2d 1176 (1984), the plaintiff further contends that, under the supremacy clause of the United States constitution, ""state law defenses [such as lack of jurisdiction under article third, § 7, of the state constitution] cannot be asserted against federal constitutional claims ...."" In response, the defendants rely on the decisions of the United States Court of Appeals for the Second Circuit in Shannon v. Jacobowitz , 394 F.3d 90 (2d Cir. 2005), and Powell v. Power , 436 F.2d 84 (2d Cir. 1970), and contend that the plaintiff has not made a colorable claim of a federal constitutional violation because he has alleged only errors in the conduct of the election, rather than an intentional act by a government official directed at impairing a citizen's right to vote. Assuming that the supremacy clause of the United States constitution would override the divestiture of jurisdiction by the elections clause in the Connecticut constitution with respect to federal constitutional claims arising from a state legislative election, we conclude that the plaintiff nevertheless has not sufficiently pleaded federal constitutional claims.","Finally, as this Court's Uniformity Clause decisions have explained, ""federal equal protection jurisprudence ... sets the floor for Pennsylvania's uniformity assessment."" Downingtown Area Sch. Dist. v. Chester Cty. Bd. of Assessment Appeals , 590 Pa. 459, 913 A.2d 194, 200 (2006) (citing 1 WADE J. NEWHOUSE, CONSTITUTIONAL UNIFORMITY AND EQUALITY IN STATE TAXATION 27-28 (2d ed. 1984) ). In other words, if the Majority is correct that the challenged tax scheme violates the Fourteenth Amendment to the United States Constitution, and assuming that the Majority relies upon the Equal Protection Clause (something to which today's Majority will not commit), then the scheme necessarily violates the Uniformity Clause of the Pennsylvania Constitution as well. Because of this overlap between constitutional doctrines, and because there are many reasons to question the correctness of our holding in Monzo , this Court should have begun and ended its analysis with Sands' Uniformity Clause challenge.","In the context of determining a criminal defendant's rights, the Delaware Constitution has been oft-seen as ""an independent source of rights and relie[d upon] as the fundamental law."" Accordingly, our State Constitution may be and, where justified, has been interpreted as providing greater protection of individual rights than that which the Federal Constitution requires. So, while this Court need not be reluctant, where warranted, to show greater sensitivity to Delawareans' individual rights under our Constitution than the United States Supreme Court accords to their rights under the Federal Constitution, the Court must ""apply a logical, deductive analytical process"" to determine whether a state constitutional provision should be given the same interpretation as ""similar language in the United States Constitution."" As described by one state supreme court, ""[t]he question of state constitutional adjudication [ ] is not whether this Court may interpret our constitution differently than the federal constitution, the issue is whether we must. ""","Plaintiffs have asserted six claims-three federal and three state constitutional: 1) a violation of the First Amendment free speech clause; 2) a violation of the First Amendment establishment clause; 3) a violation of the Fourteenth Amendment equal protection clause; 4) a violation of the freedom of speech clause of Article 16 of the Massachusetts Declaration of Rights; 5) a violation of the non-establishment of religion clauses of Articles 2 and 3 of the Massachusetts Declaration of Rights; and 6) a violation of equal protection under Articles 1 and 3 of the Massachusetts Declaration of Rights. The City seeks judgment on the pleadings as to all of those claims. Federal law governs the Court's analysis of Plaintiffs' claims under both the United States and Massachusetts Constitutions. See, e.g., Commonwealth v. Barnes, 461 Mass. 644, 650, 963 N.E.2d 1156 (2012) (classifying the free speech provisions of Article 16 of the Massachusetts Declaration of Rights as a ""cognate provision"" of the First Amendment); Brackett v. Civil Serv. Comm'n, 447 Mass. 233, 243, 850 N.E.2d 533 (2006) (noting that ""[t]he standard for equal protection analysis under [Massachusetts'] Declaration of Rights is the same as under the Federal Constitution""); Opinion of the Justices to the House of Representatives, 423 Mass. 1244, 1247, 673 N.E.2d 36 (1996) (explaining that the court's analysis under Article 2 of the Massachusetts Declaration of Rights was ""based on the same standards applied under the establishment clause of the First Amendment"").","Thus, we also disagree with the plaintiff's reliance on Butterworth v. Dempsey , 229 F.Supp. 754 (D. Conn.), aff'd sub nom. Pinney v. Butterworth , 378 U.S. 564, 84 S.Ct. 1918, 12 L.Ed.2d 1037 (1964), and the decision that followed on remand, Butterworth v. Dempsey , 237 F.Supp. 302 (D. Conn. 1964), for the proposition that, ""under Baker v. Carr , [supra, 369 U.S. 186, 82 S.Ct. 691], a claim made under the federal constitution cannot be limited by the state constitution."" That case is distinguishable because it involved a challenge to our state's legislative districting in light of recently announced one person, one vote principles, and the need for a state constitutional convention and redistricting sooner than provided by the Connecticut constitution. See Butterworth v. Dempsey , supra, 237 F. Supp. at 306-307. Thus, the allegation at issue in that case involved an equal protection violation that had been imposed de jure, rather than the limited challenge to a flawed election at issue in the present case. See Westchester County Independence Party v. Astorino , 137 F.Supp.3d 586, 619-20 (S.D.N.Y. 2015) (noting distinction between ""[l]aws that by their own terms burden the fundamental rights of minority groups [that] raise particular concerns of invidious discrimination"" and cases alleging ""[u]neven or erroneous application of an otherwise valid statute [that] constitutes a denial of equal protection only if it represents intentional or purposeful discrimination"" [internal quotation marks omitted] ).","369 (1967) struck down a California constitutional amendment that prohibited enacting any law that restricted an individual from refusing to sell land to a buyer for any reason. The Court’s argument seemed to be that the amendment to the state constitution was a state action violating equal protection. In a number of cases, the Court has continued to limit state action claims against private individuals. In Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), the Supreme Court ruled that Section One of the Fourteenth Amendment does not apply when electric utilities stop service to customers. The Court also determined in Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978) that there was no Section One liability for a warehouseman selling stored property to make good back payments. Privileges and Immunities Clause There has been some debate over the meaning of the Privileges and Immunities Clause with several possible original meanings. A question arises as to whether the clause meant that all state laws should be applied equally to its citizens or that state laws should have certain substantive content. The substantive view can be further divided into two categories. One view is that these privileges and immunities include all of the rights in the Constitution, including the Bill of Rights. Thus, this view sees the purpose of the Privileges and Immunities Clause as applying all of the rights in the Constitution to all of the states. Another view is that it only meant to make the Bill of Rights applicable to the states. In Corfield v. Coryell, 6 Fed. Cas. 546 (No. 3,230)(C.C.E.D.Pa., 1823), an early case concerning the Privileges and Immunities Clause, found that the Clause protects certain fundamental rights of all citizens. However, in Slaughter-House Cases, 83 U.S. 36 (1873), the Supreme Court rejected that interpretation, holding that the privileges of national citizenship were substantive, but they came about as a result of the federal government, the Constitution, or other laws. The fundamental natural rights were not included, and thus the equality function of the Privileges and Immunities Clause was taken over by the Equal Protection Clause and the substantive functions were taken by the Due Process Clause.","There is, of course, no requirement that states recognize as ""fundamental"" only those interests so recognized by the United States Supreme Court in its constitutional analysis. While the United States Supreme Court has rejected the right to education as a ""fundamental interest,"" San Antonio Indep. Sch. Dist. v. Rodriguez , 411 U.S. 1, 37, 93 S.Ct. 1278, 1299, 36 L.Ed.2d 16 (1973), other states (not including Iowa), have declined to follow the Supreme Court's lead, see, e.g. , Serrano v. Priest , 18 Cal.3d 728, 135 Cal.Rptr. 345, 557 P.2d 929 (1976) (en banc) (reaffirming under state constitution ""education is a fundamental interest""); Idaho Sch. for Equal Educ. Opportunity v. Evans , 123 Idaho 573, 850 P.2d 724, 734-35 (1993) (applying intermediate standard of review to equal protection challenge under state constitution); Edgewood Indep. Sch. Dist. v. Kirby , 777 S.W.2d 391, 392 (Tex.1989) (finding constitutional mandate under state constitution to provide for education); see also Lake View Sch. Dist. No. 25 v. Huckabee , 351 Ark. 31, 91 S.W.3d 472, 479 (2002) (""Nevertheless, because we conclude that the clear language of Article 14 imposes upon the State an absolute constitutional duty to educate our children, we conclude that it is unnecessary to reach the issue of whether a fundamental right is also implied."").","Baker v. Carr (1962): Baker v. Carr (1962) is the U.S. Supreme Court case that held that federal courts could hear cases alleging that a state’s drawing of electoral boundaries, i.e. redistricting, violates the Equal Protection Clause of the Fourteenth Amendment of the Constitution. In so ruling, the Court also reformulated the political question doctrine. Find the full text of the case here.  In the case, the plaintiff lived in an urban Tennessee voting district which was relatively underrepresented compared to rural voting districts. Tennessee law required districts to be redrawn every ten years, but Tennessee had not done so in decades. The plaintiff sued in federal district court, claiming that the law required Tennessee to redraw their districts to make each district’s representation substantially equal to its population. The lower court held it was a political question and therefore non-justiciable, dismissing plaintiff’s case. The U.S. Supreme Court disagreed and held that the constitutionality of a legislative appointment scheme was not a political question and therefore was justiciable; i.e., a federal court could hear the case and decide on the merits.  In finding this case justiciable, the Court created the political question doctrine, which creates a series of factors, at least one of which must be present, in order for the case to be a non-justiciable political question. Under the doctrine, if any of the following are met, then the court may not hear the case: (a) commitment of the issue to a branch of government other than the judiciary; (b) lack of standards for resolving the issue; (c) impossibility of the judiciary to resolve the issue without first making a policy determination; (d) a judicial decision of that matter as a lack of respect for other branches of government; (e) a political decision has already been made; or (f) the potential for multiple pronouncements by various branches on one question. Further, by holding that such cases were justiciable, the Supreme Court paved the way for federal courts to hear and decide on claims that electoral districts violated the equal protection clause. Two years later, the U.S. Supreme Court relied on Baker to require that the United States House of Representatives and state legislatures establish electoral districts of equal population in Wesberry v. Sanders and Reynolds v. Sims.","The passages collectively highlight significant principles regarding the interplay between federal and state constitutional interpretations, particularly under the Equal Protection Clause. Key points include the concept that state courts can interpret their constitutions to offer greater protection than the federal counterpart, but they are bound by the minimum standards set by the federal Constitution. It is also noted that the U.S. Supreme Court has jurisdiction to review state court decisions when federal constitutional questions are involved (e.g., Baker v. Carr). Additionally, state constitutions can independently provide more rigorous protections, but interpretations aligning state equal protection with the federal Fourteenth Amendment must adhere to federal standards. The passages also emphasize the rational basis review applied to economic legislation unless suspect classifications or fundamental rights are involved. Finally, principles such as the Supremacy Clause and the Court’s avoidance of political questions (as seen in Baker) frame the judiciary’s discretion in reviewing state court decisions on federal constitutional grounds.","Whether State Courts Have Jurisdiction over the Plaintiff's Federal Constitutional Claims, Regardless of the State Elections Clause","Martin v. Hunter's Lessee (1816): Martin v. Hunter‚Äôs Lessee (1816), is a Supreme Court case that established the Supreme Court‚Äôs authority over state courts in matters of federal law. The plaintiff in this case, Martin, sued the defendant, Hunter‚Äôs Lessee, in Virginia State court over a land dispute. The Virginia Court of Appeals decided in favor of Hunter‚Äôs Lessee but the Supreme Court of the United States reversed this holding. The Virginia State court rejected the Supreme Court‚Äôs reversal stating that Section 25 of the Judiciary Act (a law that granted the United States Supreme Court appellate review power over state-court decisions) was unconstitutional. The State court reasoned that under the principle of dual sovereignty, both State and Federal Supreme Courts were most powerful in their own governments with neither having superiority over the other. The United States Supreme Court reconsidered the case and upheld the Judiciary Act, reasoning that questions of federal law were within the Supreme Court‚Äôs jurisdiction. The Court rejected the notion that state governments held equal sovereignty with the federal government. The Court emphasized the importance of having a single, coherent interpretation of the Constitution and federal laws rather than multiple competing interpretations from various state courts and referred to Article III which implicitly states that the Supreme Court has the right to review decisions of state courts. The case established the Supreme Court‚Äôs supremacy in matters of constitutional interpretation and over state courts, making it the most powerful court in the United States. In the later half of the nineteenth century, the Court went on to limit its power over state-law issues in appeals that involved federal questions. In Murdock v. Memphis (1874), the Court held that it will only consider cases with federal issues even though a revised Section 25 of the Judiciary Act omitted language indicating that the Court could only decide federal-issues. [Last updated in July of 2020 by the Wex Definitions Team]","On the surface, my colleagues purport to take issue with this Court's procedure for certification. But, on a more fundamental level, they appear to challenge this Court's very jurisdiction to decide matters of state law in diversity cases, a power that emanates from Article III and which Congress has codified in 28 U.S.C. ¬ß 1332. It is an ""undisputed constitutional principle that Congress, and not the Judiciary, defines the scope of federal jurisdiction within the constitutionally permissible bounds."" New Orleans Pub. Serv., Inc. v. Council of City of New Orleans , 491 U.S. 350, 359, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). Federal courts have a ""virtually unflagging obligation ... to exercise the jurisdiction given them,"" Colo. River Water Conservation Dist. v. United States , 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), and ""have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given,"" Cohens v. Virginia , 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821). Thus, when diversity jurisdiction is properly invoked, federal courts have a ""duty ... to decide questions of state law whenever necessary to the rendition of a judgment."" Meredith v. City of Winter Haven , 320 U.S. 228, 234, 64 S.Ct. 7, 88 L.Ed. 9 (1943) ; see Burgess v. Seligman , 107 U.S. 20, 33, 2 S.Ct. 10, 27 L.Ed. 359 (1883) (explaining that ""[t]he federal courts have an independent jurisdiction in the administration of state laws, co-ordinate with, and not subordinate to, that of the state courts""). And ""it is still the duty of the federal courts, where the state law supplies the rule of decision, to ascertain and apply that law even though it has not been expounded by the highest court of the State."" Fid. Union Tr. Co. v. Field , 311 U.S. 169, 177, 61 S.Ct. 176, 85 L.Ed. 109 (1940) (call number omitted).","b. The Court Has Federal Question Jurisdiction, and Supplemental Jurisdiction Over the State-Law Claims","b. The Court Has Federal Question Jurisdiction, and Supplemental Jurisdiction Over the State-Law Claims","In overruling our prior precedent, we are mindful of the principle of stare decisis, which ""gives stability and continuity to our case law."" Conway v. Wilton , 238 Conn. 653, 658, 680 A.2d 242 (1996). Stare decisis, however, is ""not an inexorable command"" or an ""absolute impediment to change,"" especially when a prior decision ""is clearly wrong."" (Internal quotation marks omitted.) Id. at 660, 680 A.2d 242 ; see also State v. Miranda , 274 Conn. 727, 734, 878 A.2d 1118 (2005) (""[i]t is more important that the court should be right upon later and more elaborate consideration of the cases than consistent with previous declarations"" [internal quotation marks omitted] ), quoting Barden v. Northern Pacific Railroad Co. , 154 U.S. 288, 322, 14 S.Ct. 1030, 38 L.Ed. 992 (1894). Our conclusion today, moreover, is not a matter of choice, but is compelled by the supremacy clause of the United States constitution. See Haywood v. Drown , 556 U.S. 729, 740-41, 129 S.Ct. 2108, 173 L.Ed.2d 920 (2009) (holding that supremacy clause of United States constitution prohibits states from ""shut[ting] the courthouse door to federal [¬ß 1983 ] claims"" by divesting their state courts of jurisdiction).",1. Supreme Court Precedent Requires the Court to Apply Rational Basis Review,"The Supremacy Clause provides that the Constitution, federal statutes, and treaties constitute ""the supreme Law of the Land."" Art. VI, cl. 2. The Clause provides ""a rule of decision"" for determining whether federal or state law applies in a particular situation. Armstrong v. Exceptional Child Center, Inc. , 575 U.S. 320, 324, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015). If federal law ""imposes restrictions or confers rights on private actors"" and ""a state law confers rights or imposes restrictions that conflict with the federal law,"" ""the federal law takes precedence and the state law is preempted."" Murphy v. National Collegiate Athletic Assn. , 584 U. S. ----, ----, 138 S.Ct. 1461, 1480, 200 L.Ed.2d 854 (2018).",Whether the Elections Clause Divests State Courts of Jurisdiction over This Case,b. The Consistent Interpretation of the Federal Courts in This Circuit Supports the Court's Holding.,"From the provided passages, several high-level legal principles and rules are relevant to answering the question about the United States Supreme Court's proper disposition of the case concerning the state supreme court's ruling on equal protection clauses.

1. **Supreme Court's Authority Over State Courts in Federal Matters**: In *Martin v. Hunter's Lessee* (1816), the U.S. Supreme Court established its authority over state courts in interpreting federal law, underscoring that the Supreme Court is the ultimate arbiter of federal constitutional issues, and emphasizing the importance of a unified interpretation of the Constitution across all states.

2. **Federal Question Jurisdiction**: When a case involves federal constitutional claims, the U.S. Supreme Court has jurisdiction to review state court decisions to ensure consistency in the interpretation of federal law. This is consistent with the principles of federal question jurisdiction and the Supreme Court’s role in matters of federal constitutional interpretation.

3. **Supremacy Clause**: The Supremacy Clause mandates that federal law is the ""supreme Law of the Land,"" invalidating state laws that conflict with federal laws. This implies that a state supreme court's interpretation of the federal constitution that is viewed as incorrect by the U.S. Supreme Court can be reviewed and potentially overturned to maintain the supremacy and uniform interpretation of federal law.

4. **Adequate and Independent State Grounds Doctrine**: The doctrine from the principle highlighted in the passage about federal courts applying state law signifies that if a state court's decision rests on ""adequate and independent"" state grounds and does not necessarily depend on the interpretation of federal law, the U.S. Supreme Court typically declines to review such decisions. This principle is applied to ensure that the U.S. Supreme Court does not interfere in state law matters unless there is a significant federal issue.

Together, these passages highlight the U.S. Supreme Court's role in maintaining consistent constitutional interpretation and its authority to review state court decisions involving federal law, suggesting it can reverse the state supreme court decision if the interpretation of the federal equal protection clause is deemed incorrect.","The passage explains that the United States Supreme Court will refuse to take jurisdiction over a state court decision if that decision is based on an independent and adequate state law ground, separate from any federal law issues. Specifically, if the state court’s judgment can stand purely on an independent state law ground that is valid regardless of the federal question, the US Supreme Court will not review the decision even if it might disagree with the state court's interpretation of federal law. However, if it is unclear whether the state court's decision relied on the state law ground alone and this ground is not adequate on its own, the US Supreme Court will assume the state court based its decision on the federal law issue and will take jurisdiction to address this federal question."
mbe_614,,"Peter and Donald were in the habit of playing practical jokes on each other on their respective birthdays. On Peter's birthday, Donald sent Peter a cake containing an ingredient that he knew had, in the past, made Peter very ill. After Peter had eaten a piece of the cake, he suffered severe stomach pains and had to be taken to the hospital by ambulance. On the way to the hospital, the ambulance driver suffered a heart attack, which caused the ambulance to swerve from the road and hit a tree. As a result of the collision, Peter suffered a broken leg. In a suit by Peter against Donald to recover damages for Peter's broken leg, Peter will","prevail, because Donald knew that the cake would be harmful or offensive to Peter.","prevail, only if the ambulance driver was negligent.","not prevail, because Donald could not reasonably be expected to foresee injury to Peter's leg.","not prevail, because the ambulance driver's heart attack was a superseding cause of Peter's broken leg.",A,"The elements of proximate cause are cause in fact and foreseeability. See Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). Cause in fact means that the act or omission was a substantial factor in bringing about the injury, and without it harm would not have occurred. See Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act or omission created for others. See D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002). This test requires ‚Äúonly that the general danger, not the exact sequence of events that produced the harm, be foreseeable.‚Äù See Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex.1998); Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996).","Likelihood of Survival Test: If the defendant's actions decreased the victim's chance of survival, then the defendant is guilty.   Some courts have rejected this test because they believe that the intervening action only presents a mere possibility that the person’s life would have been saved. As such, we cannot be certain that the absence of that test actually contributed to the death (for example, under the likelihood of survival test, say that a doctor refuses to perform ""x"" surgery or test on the patient. After the doctor failed to perform the surgery or test, the patient died. Under the likelihood of survival test, the doctor would be found guilty, because performing the test would have increased the likelihood of the patient's survival. However, courts that reject the test would say that the doctor's performance of the test or operation would not necessarily increase the likelihood of survival, because the patient may have still had the same chance of dying, and so those courts would not find the doctor guilty.) Acceleration Theory: If the defendant's action caused a victim to die sooner than the victim would have otherwise died, then the defendant is guilty. For example, If ""X"" fatally poisons ""Y,"" but ""Z"" shoots and kills ""Y,"" under acceleration theory, Z is convicted, rather than ""X."" Proximate Cause: Some courts have scrapped but-for cause altogether, and simply apply the doctrine of proximate cause. Under this test, a defendant whose actions are closely enough related to the result is guilty. Model Penal Code (MPC) Approach: The defendant is guilty if the result of the defendant's action involves the same kind of injury or harm as the probable result, and the result is not too remote or accidental in its occurrence. [Last updated in June of 2022 by the Wex Definitions Team]","There was no fair reading of what appears to have happened that day that could justify any reason why a reasonable person would grab a gun, loaded or unloaded, under these circumstances when there were any number of very logical, very appropriate, and, in fact, I would say necessary alternatives, none of which were exercised. Mr. Young went to DEFCON 1 right away. And for those of you who don't understand that reference, it means you-you decided to use judgment with the ultimate weapon at your disposal leading to this. So yes, this is no accident. No one-I don't think [anyone] of reasonable mind could say it's an accident. Gun accidents occur when you're cleaning a gun in your house and it goes off and shoots somebody. That's an accident. An accident is when you're aiming at a whitetail deer and you miss it and it goes through someone's house and kills somebody or hits somebody. That's an accident. Pulling a gun out in-in the heat of passion when you think someone's mad at you, that's not an accident. That's not an accident. Now, it doesn't necessarily mean it has to be negligent, but in this case it was. And it was the type of negligence and gross negligence that carries with it a criminal penalty.","it was clearly lawful, under these conditions, for the conductor to expel him and his drunken companions from the train if he had a sufficient force to overcome their threatened resistance, or else to arrest them all without warrant, and then deliver them to the first peace officer he could procure within a reasonable time. If this were not so, then, as said by Lord Chief Justice Denman in Webster v. Watts , [63 E. C. L. 311], ""the peace of all the world would be in jeopardy."" And it would be in jeopardy, because if, in such and similar instances, no arrest could be lawfully made without a warrant, the culprit, ""if transient and unknown, would escape altogether,"" before a warrant could be obtained ( Mitchell v. Lemon , 34 Md. [176,] 181 [ (1871) ] ), and there would soon cease to be any order or any security or protection afforded the public on swiftly-moving railroad trains, or even elsewhere, unless a peace officer were constantly present. The delay necessarily incident to obtaining a warrant would be in many, if not in most, cases of this and a kindred character equivalent to an absolute immunity from arrest and punishment; and, should the name of the offender be unknown, he, most probably, would never be apprehended if once suffered to depart. The law is not so impotent and ineffective as that. Being physically unable to expel these alleged riotous persons from the train, the conductor telegraphed for a peace officer, and without delay, and while the plaintiff was still drunk, caused his arrest the instant the officer thus summoned came in view of the plaintiff. If, then, any bystander could, in the language of Baron Parke, ""for the sake of the preservation of the peace, * * * restrain the liberty of him whom he sees breaking"" the peace, the act of the conductor in telegraphing for the policeman, and within a short space of time thereafter handing the plaintiff over to the officer, was in no respect different from a formal arrest of the plaintiff by the conductor, in the midst of the riot and disorder, and the prompt delivery of him afterwards to the officer. If the plaintiff was not in fact arrested by the conductor because of the presence of superior resisting force, that fact cannot make the subsequent act of the conductor in pointing out the plaintiff to the officer wrongful or illegal.","[25] We find McElroy distinguishable. In that case, the defendant was punished for two separate acts: (1) causing the victim's death, and (2) leaving the scene of an accident that resulted in a death, which a serious crime in its own right, without regard to whether the defendant actually caused the death at issue. Here, if we allowed Wadle's convictions for OWI causing serious bodily injury and leaving the scene after OWI causing serious bodily injury to stand, Wadle would be punished twice for the same act-OWI causing serious bodily injury. That is, he would be punished by virtue of the standalone OWI-causing-serious-bodily-injury conviction, and he would additionally be punished by virtue of the elevation of the failure-to-stop conviction to a Level 3 felony. This would be a textbook violation of the following common-law rule against double jeopardy: ""[c]onviction and punishment for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime for which the defendant has been convicted and punished."" Guyton , 771 N.E.2d at 1143 (quoting Richardson , 717 N.E.2d at 56 ). Therefore, the two convictions cannot stand. And for the reasons already discussed above, the same rationale requires the setting aside of the convictions for OWI endangering a person and operating a vehicle with an ACE of 0.08 or more.","Moreover, Defendant's provoked flight argument is inconsistent with the factual determinations previously made by this Court. Federal courts have found that ""officers cannot improperly provoke-for example, by fraud-a person into fleeing and use the flight to justify a stop."" United States v. Franklin , 323 F.3d 1298, 1302 (11th Cir. 2003) ; see also United States v. Jeter , 721 F.3d 746, 754 (6th Cir. 2013) (""Despite the lack of clarity on the matter of provoked flight, we can certainly extrapolate some guiding principles. Fraud, for example, would surely suggest wrongdoing on the part of the officers and thus make a finding of provocation more likely. If police officers put a defendant in reasonable fear of physical harm, that might also qualify as provocation.""). In assessing whether flight was provoked, the Court considers ""whether a reasonable and innocent person facing [the] situation would have been caused to flee in the same manner as"" the defendant. Franklin , 323 F.3d at 1302.","An opposite example is Casey , which dis allowed the excuse defense. There a driver broke the law by failing to honk the horn when approaching a blind curve on a narrow mountain road. ( Casey , supra , 138 Cal.App.3d at p. 385, 188 Cal.Rptr. 18.) Honking a horn is quick and easy, like checking the trailer before heading for the freeway, while a head-on collision on a mountain curve can be like flying freeway cargo: very serious. It is socially efficient for drivers on curves to obey the law and to honk when approaching blind curves, just as it is for drivers to check the trailer. The Casey decision barred the excuse defense on those facts.","On July 10, 2013, Donald and Mary Timm set off on a cross-country trip on their Harley-Davidson Ultra Classic. The Timms intended to drive from their home in Dyer, Indiana to Salt Lake City, Utah. While crossing Nebraska, the couple suffered a catastrophic accident when the motorcycle's rear tire sustained a puncture and rapidly deflated, leading Donald to lose control of the motorcycle and crash into a concrete median barrier. Mary flew off the motorcycle while Donald remained attached to the bike as it slid along the highway. Though both riders were wearing helmets, each sustained serious head injuries. In addition to suffering a traumatic brain injury, Donald sustained facial fractures and a cervical spine injury.","¶ 16 In Wilkins , the defendant ambulance driver was transporting a patient on a non-emergency basis from a hospital to a nursing home when the driver was involved in a collision with a vehicle driven by the plaintiff. Wilkins , 2013 IL 114310, ¶ 3, 372 Ill.Dec. 1, 991 N.E.2d 308. The supreme court found that the accident occurred while the ambulance was transporting a patient, and as a consequence, there was no dispute that the ambulance operator was providing non-emergency medical service. Wilkins , 2013 IL 114310, ¶ 21, 372 Ill.Dec. 1, 991 N.E.2d 308. In the instant case, there was no patient being transported at the time of the accident; the ambulance was in route to pick up a patient for non-emergency transport.","but-for test: The but-for test is a test commonly used in both tort law and criminal law to determine actual causation.  The test asks, ""but for the existence of X, would Y have occurred?""  In tort law, but-for causation is a prerequisite to liability in combination with proximate cause. In the absence of either of these, a party cannot be held liable.  Despite its ubiquitousness, the but-for test has a couple of problems:    Tenuous Relations Between Actions: If someone looks hard enough, most things can be construed as a but-cause.   For example, a party who is robbed while taking an alternative route home from work due to construction can credibly claim the mayor who was elected on promises to start this construction is the but-for cause of the robbery. For many, the connection here is too remote to justify liability.    Over-Causation/Merged Causes​: Sometimes there are too many but-for causes such that it is difficult to parse out any individual cause’s contribution to the whole. For example, if two people shoot another at the exact same time, it may be unclear which bullet causes the death. Courts have taken a multitude of approaches to solve these issues. The field of torts solves the tenuous relationship issue by requiring proximate cause in addition to but-for causation for liability. Additionally, many jurisdictions also solve the merged causation issue in the field of torts through the use of joint and several liability which holds all contributing parties liable for the whole of the damage so long as they were negligent. Criminal law has its own set of solutions. Some courts use the ""substantial factor"" test, which states that as long as a defendant's actions were a substantial factor in the crime, then that defendant can be found guilty. Under this test, both gunmen would be found guilty despite ambiguities in whose bullet caused the death. However, this test creates a problem in which the members of the firing squad whose bullets did not harm the victim are still guilty, even though their actions did not lead to the victim's death. Courts have developed four other tests to try and solve this issue.   Likelihood of Survival Test: If the defendant's actions decreased the victim's chance of survival, then the defendant is guilty. Some courts have rejected this test because they believe that the intervening action only presents a mere possibility that the person’s life would have been saved.","¶1 A drunk driver struck and disabled another vehicle, then fled into the early morning darkness. A Good Samaritan stopped to help the vehicle that had been struck. While helping, the Good Samaritan sustained fatal injuries due to a secondary accident. We are asked whether, as a matter of law, the drunk driver's acts were too attenuated from the Good Samaritan's death for criminal liability to attach. We conclude that the drunk driver's acts were the legal cause of the Good Samaritan's death because those acts were criminal, caused direct harm as well as risk of further harm, and occurred close in time and location to the ultimate harm that befell the Good Samaritan. We further conclude that the issue of intervening, superseding cause was proper for the jury to determine as a matter of actual cause using a reasonable foreseeability standard and that the vehicular homicide conviction is supported by sufficient evidence. Accordingly, we hold that the drunk driver's acts proximately caused the Good Samaritan's death, and we affirm.","The provided passages offer insights into various legal principles relevant to Peter's potential lawsuit against Donald for his broken leg. Key points include:

- **Proximate Cause and But-for Causation**: The but-for test establishes a prerequisite for liability, asking whether the harm would have occurred but for the defendant's actions. However, this test alone is insufficient; proximate cause must also be proven, which requires showing that the defendant's actions are sufficiently connected to the harm (but-for and proximate cause, Model Penal Code Approach).

- **Intervening and Superseding Causes**: Courts consider whether an intervening event (like the ambulance driver's heart attack) breaks the causal chain, potentially absolving a defendant of liability. This principle suggests that the occurrence must be reasonably foreseeable and not too remote or accidental (Proximate Cause, but-for causation, drunk driver and Good Samaritan case).

- **Foreseeability and Direct Harm**: Liability can hinge on whether the type of harm that occurred was a foreseeable result of the defendant's actions. The Model Penal Code states that the injury must be of a type that was a probable result of the defendant's actions (Model Penal Code Approach).

These passages direct the analysis toward evaluating whether Donald's act of sending a cake with a known harmful ingredient directly led to Peter's broken leg and whether the ambulance driver's unforeseeable heart attack constitutes a superseding cause that breaks the chain of causation.","a. The Oregon Rule, The Pennsylvania Rule, and Res Ipsa Loquitur",1. Application of the Law to the Facts of the Case,"4. Parol evidence rule, gist of the action doctrine, and economic loss doctrine",2. Application of the Law to the Suit at Bar,B. Application of the Law to the Facts of this Case,"Section 324A of the Restatement (Second) of Torts (""section 324A"")",B. Application of the Law to the Facts of this Case,"A. Background: Tort Damages, The Collateral Source Rule, And Alaska Case Law","1. State Law Torts: Assault, Battery, Civil Conspiracy, and Trespass","On appeal, the defendants first claim that the giving of the jury instruction on the doctrine of res ipsa loquitur constitutes harmful error. Specifically, they argue that, among other things, because there was direct evidence of the defendants' negligence presented at trial, the court erred in concluding that the doctrine applied. Moreover, the defendants argue that the instruction on the doctrine of res ipsa loquitur was harmful because it likely misled the jury as to the burden of proof and, at a minimum, must have confused the jury. In response, the plaintiff argues that review of the defendants' claim is barred by the general verdict rule. Specifically, the plaintiff claims that, because the defendants assented to a general verdict form and did not request specific interrogatories with respect to each count, the general verdict rule applies. Under the unique facts of this case, where res ipsa loquitur was pleaded as a separate cause of action, without objection from the defendants, and separate jury interrogatories asking the jury to set forth the basis of its verdict were not provided to the jury, we conclude that the general verdict rule applies and, therefore, the defendants' claim of instructional error is unpreserved and not reviewable. The following facts and procedural history are relevant to our resolution of the claim. In opposing the defendants' motion to set aside the verdict or for remittitur, the plaintiff argued that the res ipsa loquitur instruction was proper given the underlying facts of the case and, additionally, that review of the defendants' claim was barred by the general verdict rule. In its memorandum of decision, the court agreed with the plaintiff and explained that the case law in which the application of the doctrine was deemed improper addressed circumstances where the factual basis for negligence was clear, whereas, in the present case, there were no independent witnesses and the plaintiff had little memory of the event. The court also agreed that, despite any error with respect to the res ipsa loquitur charge, the jury's verdict could be upheld under the proper and unchallenged premises liability theory of recovery. The court stated: ""The defendants do not challenge the propriety of the [verdict on the] negligence counts, just the res ipsa [loquitur] counts. Even if the res ipsa [loquitur] counts should have been [stricken] ... the verdict should be sustained under the general verdict rule.""","The relevant legal principles discussed in the provided passages focus on the concepts of foreseeability, negligence, causation, and intervening causes within tort law. The passages related to res ipsa loquitur suggest that the court considers whether the harm would typically occur without negligence and whether the defendant had control over the instrumentality causing the injury. The doctrine of foreseeability examines whether it was predictable that a particular act could lead to harm. Additionally, intervening causes, such as the ambulance driver's unforeseeable heart attack, are analyzed to determine if they supersede the original negligent act, breaking the chain of causation and absolving the initial actor of liability for subsequent injuries. These principles help in evaluating if Donald could be held liable for Peter's broken leg due to the chain of events set in motion by the harmful cake.","The passage outlines the elements of proximate cause, which include cause in fact and foreseeability. Cause in fact requires that the act or omission was a substantial factor in bringing about the injury, without which the harm would not have occurred. Foreseeability means that a person of ordinary intelligence should have anticipated the general dangers created by their negligent actions, though not necessarily the exact sequence of events. The test for foreseeability only requires that the general danger was foreseeable, not the precise manner in which the injury occurred. This principle is crucial in determining liability in negligence cases."
mbe_642,,"Hal and Wan owned Blackacre as joint tenants, upon which was situated a two-family house. Hal lived in one of the two apartments and rented the other apartment to Tent. Hal got in a fight with Tent and injured him. Tent obtained and properly filed a judgment for $10,000 against Hal. The statute in the jurisdiction reads: Any judgment properly filed shall, for ten years from filing, be a lien on the real property then owned or subsequently acquired by any person against whom the judgment is rendered. Wan, who lived in a distant city, knew nothing of Tent's judgment. Before Tent took any further action, Hal died. The common-law joint tenancy is unmodified by statute. Wan then learned the facts and brought an appropriate action against Tent to quiet title to Blackacre. The court should hold that Tent has","a lien against the whole of Blackacre, because he was a tenant of both Hal and Wan at the time of the judgment.","a lien against Hal's undivided onehalf interest in Blackacre, because his judgment was filed prior to Hal's death.","no lien, because Wan had no actual notice of Tent's judgment until after Hal's death.","no lien, because Hal's death terminated the interest to which Tent's lien attached.",D,"As stated, there is no dispute that a joint tenancy with right of survivorship was created. Under New York law, a ‚Äújoint tenancy is an estate held by two or more persons jointly, with equal rights to share in its enjoyment during their lives, and creating in each joint tenant a right of survivorship‚Äù (24 NY Jur.2d, Cotenancy and Partition ¬ß 16, at 332, 333). ‚ÄúThe continuance of the joint tenancy depends on the maintenance of the unities of title, interest and possession, and the destruction of any of these unities leads to a severance of the tenancy, and to the creation of a tenancy in common or of several tenancies‚Äù (Loker v. Edmans, 204 App.Div.223, 226, 197 N.Y.S. 857 [3rd Dep't 1923] [internal quotation marks omitted]).‚Äù Goetz v. Slobey, 76 A.D.3d 954, 956, 908 N.Y.S.2d 237 (2nd Dep't 2010).","In any event, even if Polli had standing to challenge the entry of default against White Pines, the practical result would be the same. In Frow v. De La Vega, the Supreme Court explained that in a multi-defendant case where there is an entry of default against only one defendant, the proper course of action is to permit the non-defaulting parties to litigate the case while holding the entry of default in abeyance and deferring any final default judgment against the defaulting defendant. 82 U.S. 552, 554, 15 Wall. 552, 21 L.Ed. 60 (1872) (""[I]f the suit should be decided against the complainant on the merits, the bill will be dismissed as to all the defendants alike-the defaulter as well as the others. If it be decided in the complainant's favor, he will then be entitled to a final decree against all. But a final decree on the merits against the defaulting defendant alone, pending the continuance of the cause, would be incongruous and illegal.""). Courts have explained this is the proper course of action as neither the plaintiff nor the non-defaulting defendant is prejudiced; the litigation proceeds, and both parties may take discovery and present evidence and argument. However, the defaulting defendant must be sanctioned to a limited degree for its failure to appear. U. S. for Use of Hudson v. Peerless Ins. Co., 374 F.2d 942, 944 (4th Cir. 1967) (""The result is that ... the defaulting [party], has merely lost its standing in court and cannot participate in any subsequent trial of the claims against the contractor. But, as said in Frow v. De La Vega, 'if the suit should be decided against the complainant on the merits, the bill will be dismissed as to all the defendants alike-the defaulter as well as the others.' "") (citing Frow, 82 U.S. at 554 ).","Before a tenant's appeal is allowed to proceed, the tenant may be ordered to furnish the court with an appeal bond ""in a sum as the court orders,"" payable to the landlord. G. L. c. 239, § 5 (c ). That bond must be ""conditioned to pay to the plaintiff, if final judgment is in plaintiff's favor, all rent accrued at the date of the bond, all intervening rent, and all damage and loss which the plaintiff may sustain by the withholding of possession of the land or tenements demanded and by any injury done thereto during the withholding, with all costs, until delivery of possession thereof to the plaintiff."" Id. In actions for possession after a foreclosure, the appeal bond must be conditioned to pay ""all costs and ... a reasonable amount as rent of the land from the day when the mortgage was foreclosed until possession of the land is obtained by the plaintiff."" G. L. c. 239, § 6. In actions for possession after the land is purchased, the appeal bond must be conditioned to pay ""all costs and ... a reasonable amount as rent of the land from the day that the purchaser obtained title to the premises until the delivery of possession thereof to him, together with all damage and loss which he may sustain by withholding of possession of the land or tenement demanded, and by any injury done thereto during such withholding with all costs."" Id. An indigent party may move to waive the appeal bond by filing a motion within the ten-day period for appeal. G. L. c. 239, § 5 (e ). The court must grant this motion if it finds (1) that the appellant is indigent and (2) that the appellant has a nonfrivolous defense to the eviction action. Id. A judge's ""determination that a defense is frivolous requires more than the judge's conclusion that the defense is not a winner and that the party claiming it is wrong as a matter of law. Frivolousness imports futility -- not a 'prayer of a chance.' "" Home Sav. Bank of Am., FSB v. Camillo, 45 Mass. App. Ct. 910, 911, 697 N.E.2d 134 (1998), quoting Pires v. Commonwealth, 373 Mass.","In Frow v. De La Vega , decided in 1872, the Supreme Court explained that in a multi-defendant case where defendants are alleged to be jointly liable, entering a default judgment runs the risk of inconsistent judgments. 82 U.S. 552, 554, 15 Wall. 552, 21 L.Ed. 60 (1872). That is, there is a risk that the defaulting party is held liable, while the non-defaulting party that litigates is found not liable. Such a result is inconsistent because joint liability requires all defendants to be liable for any one of them to be liable. Id. (""If the court in such a case as this can lawfully make a final decree against one defendant separately, on the merits, while the cause was proceeding undetermined against the others, then this absurdity might follow: there might be one decree of the court sustaining the charge of joint fraud committed by the defendants; and another decree disaffirming the said charge, and declaring it to be entirely unfounded, and dismissing the complainant's bill.""). The proper course in such a situation is to postpone decision on the default judgment until the case against the litigating party concludes; if the litigating party loses, the default judgment can then be entered against the non-appearing party, and if the litigating party wins, the default judgment motion should be denied. Id. (""[I]f the suit should be decided against the complainant on the merits, the bill will be dismissed as to all the defendants alike-the defaulter as well as the others. If it be decided in the complainant's favor, he will then be entitled to a final decree against all. But a final decree on the merits against the defaulting defendant alone, pending the continuance of the cause, would be incongruous and illegal.""); see also RSM Prod. Corp. v. Fridman , 643 F.Supp.2d 382, 414 (S.D.N.Y. 2009) (""More than 125 years ago, the Supreme Court held that when a defendant defaults in an action asserting joint liability, judgment should not be entered against the defaulting defendant until the matter has been resolved against the other defendants[.]"") (quotations omitted), aff'd , 387 F. App'x 72 (2d Cir.","Judicial estoppel can be invoked to prevent a party that successfully maintained a position in one proceeding from afterwards adopting a clearly inconsistent position in another proceeding in order to obtain an unfair advantage. Cleaver v. Cleaver , 140 S.W.3d 771, 774-75 (Tex.App.-Tyler 2004, no pet.) (citing Andrews v. Diamond, Rash, Leslie & Smith , 959 S.W.2d 646, 649 (Tex.App.-El Paso 1997, writ denied) ). It can also be triggered by a party taking a misleading position in a prior legal proceeding, such as a debtor failing to disclose an asset in bankruptcy. Id. , (citing Zipp Indus., Inc. v. Ranger Ins. Co. , 39 S.W.3d 658, 665 (Tex.App.-Amarillo 2001, no pet.) ). Equitable estoppel, on the other hand, requires: ""(1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations."" Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc. , 962 S.W.2d 507, 515-16 (Tex. 1998) (citing Schroeder v. Texas Iron Works, Inc. , 813 S.W.2d 483, 489 (Tex. 1991) ). Estoppel is an equitable doctrine, and one seeking equity should come with clean hands. Dunnagan v. Watson , 204 S.W.3d 30, 41 (Tex.App.-Fort Worth 2006, pet. denied). However, ""[n]o one is ever estopped from asserting lack of subject matter jurisdiction."" Tourneau Houston, Inc. v. Harris County Appraisal Dist. , 24 S.W.3d 907, 910 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel at any time. Id. , (citing Federal Underwriters Exch. v. Pugh , 141 Tex. 539, 174 S.W.2d 598, 600 (1943) ).","¶25 Utah Rule of Civil Procedure 41(a)(2) states that ""an action may be dismissed at the plaintiff's request by court order only on terms the court considers proper."" This rule applies equally to the dismissal of a counterclaim. Id. 41(c). A Tenth Circuit opinion formally adopted by our court of appeals, and that we also find persuasive, defines what is meant by ""proper"" for purposes of dismissal: ""absent 'legal prejudice' to the defendant, the district court normally should grant such a dismissal."" Ohlander v. Larson , 114 F.3d 1531, 1537 (10th Cir. 1997) (adopted in Rohan v. Boseman , 2002 UT App 109, ¶¶ 21-22, 46 P.3d 753 ). In Rohan , the court of appeals articulated several factors meant to guide the court's determination as to whether a party would be legally prejudiced by the dismissal of such an action. Id. ¶ 28. These include ""the opposing party's effort and expense in preparing for trial; excessive delay and lack of diligence on the part of the movant; insufficient explanation of the need for a dismissal; and the present stage of the litigation."" Id . ¶ 21 (quoting Ohlander , 114 F. 3d at 1537 ) (internal quotation marks omitted). ""The Ohlander factors are 'by no means exclusive' and '[a]ny other relevant factors should' also be considered."" H&H Network Servs., Inc. v. Unicity Int'l, Inc. , 2014 UT App 73, ¶ 5, 323 P.3d 1025 (alteration in original) (citation omitted) (considering whether claimants were attempting to dismiss a claim merely to bring another suit or to circumvent earlier decisions). Keystone has failed to persuade us that it was legally prejudiced by the dismissal of Inside's counterclaim.","To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the complaint first must comply with Rule 8(a) by providing ""a short and plain statement of the claim showing that the pleader is entitled to relief,"" Fed. R. Civ. P. 8(a)(2), such that the defendant is given ""fair notice of what the * * * claim is and the grounds upon which it rests."" Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ) (alteration in original). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the ""speculative level."" E.E.O.C. v. Concentra Health Servs., Inc. , 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). ""A pleading that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action will not do.' "" Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Dismissal for failure to state a claim under Rule 12(b)(6) is proper ""when the allegations in a complaint, however true, could not raise a claim of entitlement to relief."" Twombly , 550 U.S. at 558, 127 S.Ct. 1955. In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true all of Plaintiff's well-pleaded factual allegations and draws all reasonable inferences in Plaintiff's favor. Killingsworth v. HSBC Bank Nevada, N.A.","The Secretary asks that we vacate the district court's judgment. This is our normal practice when a civil case becomes moot pending appellate adjudication, as doing so "" 'clears the path for future relitigation' by eliminating a judgment the loser was stopped from opposing on direct review."" Arizonans for Official English v. Ariz., 520 U.S. 43, 71, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 40, 71 S.Ct. 104, 95 L.Ed. 36 (1950) ). But vacatur is an equitable remedy, not an automatic right. See U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 23, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) (declining to vacate lower court decision after settlement mooted the case). In determining whether vacatur is appropriate, absent unusual circumstances, our decision is ""informed almost entirely, if not entirely, by the twin considerations of fault and public interest."" Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 118 (4th Cir. 2000). In considering fault, we distinguish between a party whose voluntary actions caused the mootness, and a party prevented from seeking relief from the judgment below by, as relevant here, happenstance. Bancorp, 513 U.S. at 24, 115 S.Ct. 386. Generally, only the latter situations may merit vacatur. In considering the public interest, we recognize that judicial precedents are ""presumptively correct and valuable to the legal community as a whole"" and generally should be permitted to stand. Id. at 26, 115 S.Ct. 386 (quoting Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 40, 114 S.Ct. 425, 126 L.Ed.2d 396 (1993) (Stevens, J., dissenting)).","On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) ""requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.' "" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. However, ""a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."" Id. (internal citations and quotations omitted). A court is not required to accept as true a ""legal conclusion couched as a factual allegation."" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). ""Factual allegations must be enough to raise a right to relief above the speculative level."" Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the pleading must contain something more than ""a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"")).","River City cites an opinion from the Intermediate Court of Appeals of Hawaii on whether the filing of a notice of lis pendens is an ancillary proceeding. See Isobe v. Sakatani , 127 Hawai'i 368, 279 P.3d 33 (Haw. Ct. App. 2012). The court in Isobe found a notice of lis pendens was an ancillary proceeding due to a concern that a notice of lis pendens could operate as a burden on property separate and apart from the underlying claim. Id. at 52. We find a notice of lis pendens differs from ancillary proceedings based on our precedent that a notice of lis pendens ""has no existence separate and apart from the litigation of which it gives notice."" Pond Place , 351 S.C. at 32, 567 S.E.2d at 897. The notice of lis pendens is ""designed primarily to protect unidentified third parties by alerting prospective purchasers of property as to what is already on public record, that is, the fact of a suit involving property."" Id. at 17, 567 S.E.2d at 889 (quoting 51 Am.Jur.2d Lis Pendens § 2 (2000) (emphasis added)). Although a notice of lis pendens could burden a third party attempting to purchase the affected property, that burden is directly related to the underlying litigation associated with the notice of lis pendens. As this Court has recognized, a notice of lis pendens is merely another form of pleading in the litigation of which it gives notice. See id. at 30, 567 S.E.2d at 896. Ancillary proceedings are defined as ""[o]ne growing out of or auxiliary to another action or suit, or which is subordinate to or in aid of a primary action, either at law or in equity."" Ancillary Proceeding , Black's Law Dictionary (5th ed. 1979). Because the listing of a notice of lis pendens only acts as a ""republication of the proceedings"" initiated in the underlying action, we find the filing of a notice of lis pendens is not an ancillary proceeding. Pond Place , 351 S.C. at 25, 567 S.E.2d at 894.","To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the complaint first must comply with Rule 8(a) by providing ""a short and plain statement of the claim showing that the pleader is entitled to relief,"" Fed. R. Civ. P. 8(a)(2), such that the defendant is given ""fair notice of what the * * * claim is and the grounds upon which it rests."" Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ) (alteration in original). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the ""speculative level."" E.E.O.C. v. Concentra Health Servs., Inc. , 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). ""A pleading that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action will not do.' "" Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Dismissal for failure to state a claim under Rule 12(b)(6) is proper ""when the allegations in a complaint, however true, could not raise a claim of entitlement to relief."" Twombly , 550 U.S. at 558, 127 S.Ct. 1955. In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true all of Plaintiffs' well-pleaded factual allegations and draws all reasonable inferences in Plaintiffs' favor. Killingsworth v. HSBC Bank Nevada, N.A.","The key legal principle relevant to the question of Tent's lien on Blackacre focuses on the nature of joint tenancies and how they are affected by judgments and the death of a joint tenant. The relevant passage for this principle is as follows:

- Common-law joint tenancy entails a right of survivorship, meaning that when one joint tenant dies, their interest automatically transfers to the surviving joint tenant(s). Because this transfer is automatic and occurs outside the estate of the deceased, the deceased's creditors cannot claim the property interest that has already passed to the survivors. Given that Hal and Wan owned Blackacre as joint tenants, upon Hal's death, his interest in Blackacre would pass directly to Wan. Hence, Hal’s death would fundamentally terminate Tent’s judgment lien because Hal’s interest to which the lien attached no longer exists and is now fully vested in Wan.

This principle should be used to analyze the condition of Tent's lien following Hal's death, focusing on the automatic transfer of Hal's interest under the right of survivorship inherent in joint tenancies.","[15] In sum, Flatrock's judgment lien against Morris was a valid and subsisting lien upon his interest in the real estate, which he owned with Tonia as joint tenants with right of survivorship. The judgment lien was not extinguished when Morris died. As the surviving joint tenant, Tonia acquired Morris' interest in the real estate by operation of law, subject to the lien. The lien is subject to execution and judicial foreclosure in the manner provided under Trial Rule 69. And, if another party is the purchaser of Morris' interest at an execution sale, Tonia and the purchaser will each own an undivided interest as tenants in common. See Chandler , 37 Ind. at 397.","For the reasons stated above, the Court finds that Jingqiu and William held the property as tenants in common. So the Court grants partial judgment for Lerch, and partial judgment for the government: in light of the government's lien on William's tenancy, the government can force a sale-but it can only recover half of the proceeds from that sale. Jingqiu is entitled to the other half of the proceeds. The Court will stay the execution of this judgment for 90 days, exercising its discretion under Federal Rule of Civil Procedure 62(a) to give the parties time to work out an agreed sale or another arrangement. A status hearing is set for February 26, 2019 at 10:30 a.m.","The Illinois legislature enumerated the precise interests tenants by the entirety enjoy individually, including the following contingent future interests: ""(a) an interest as a tenant in common in the event of a divorce, (b) an interest as a joint tenant in the event that another homestead is established, and (c) a survivorship interest in the entire property in the event of the other tenant's death."" 765 ILCS 1005/1c. These contingent future interests fall within the statute's broad definition of ""real estate."" Therefore, a judgment lien attaches to these individual interests, absent some exception. See In re Tolson , 338 B.R. 359, 369 (Bkrtcy. C.D. Ill. 2005). The only exception that 12-101 identifies is section 12-901-the homestead exception. See 735 ILCS 5/12-901 (the ""homestead and all rights in and title to that homestead is exempt from attachment, judgment, levy or judgment sale for the payment of his or her debts or other purposes ... ."").","[14] In contrast, a joint tenant may alienate his interest in real estate or his interest may be alienated by another. As we have noted, a joint tenant may sell or mortgage his interest to a third party, and his interest is subject to execution by a judgment lien creditor. Grathwohl , 871 N.E.2d at 301 ; Thornburg , 34 N.E. at 1002. Had the legislature intended to exempt from execution real estate owned as joint tenants with right of survivorship it would have done so. We hold that the trial court erred when it denied Flatrock's motion to execute on its judgment lien.","A judgment lien runs with the land and thus is binding on subsequent owners who have notice of it. If the lien was properly filed in the recording office, the purchaser had notice of it and took the lot subject to it. The landowner is still personally liable on the amount of the judgment against her until paid. A joint tenant or a tenant in common may encumber her own interest, but may not encumber the other co-tenant's interest.","The BAP affirmed. The BAP, like the bankruptcy court, determined that CRP did not have a lien under Missouri law because O'Sullivan's property was owned jointly with his spouse as tenants by the entirety. The BAP also concluded that the existence of a lien for purposes of § 522(f)(1) is determined by looking to state law in the context of the Bankruptcy Code's definitions of the terms ""judicial lien"" and ""lien"" under §§ 101(36) and (37). The BAP construed these terms broadly. Like the bankruptcy court, the BAP concluded that CRP's recording of the notice of foreign judgment created a cloud on O'Sullivan's title on his exempt homestead. Under Missouri law, this cloud constituted a ""charge against or interest in property"" and thus qualified as a ""judicial lien."" CRP Holdings, A-1, LLC v. O'Sullivan (In re O'Sullivan) , No. 17-6012, 2017 WL 4844244, at *3 (8th Cir. B.A.P. Sept. 22, 2017) (quoting 11 U.S.C. § 101(36) - (37) ). The BAP concluded that a cloud on title may warrant a court in removing it. The BAP also noted the ""practical difficulties"" that exist for an ""ordinary searcher of the records or even a title company [in] trying to determine whether the judgment created a lien."" Id. at *4. This could, the BAP explained, impact the property's marketability of title and value. Furthermore, the court found that ""CRP's judgment 'could become a lien the moment the ... [Debtor's] spouse dies.' "" Id. (alteration and ellipsis in original) (quoting In re O'Sullivan , 569 B.R. at 168 ). The court found that applying § 522(f) would clear the cloud on the title caused by CRP's recording of its judgment, which "" 'fastened an existing, but presently unenforceable lien ' on the Property."" Id. (quoting O'Sullivan , 569 B.R. at 168 ).","¶27 A brief overview of joint tenancy is helpful to the current analysis. A joint tenancy is ""[a] tenancy with two or more coowners who are not spouses on the date of acquisition and have identical interests in a property with the same right of possession."" Joint Tenancy , Black's Law Dictionary 1694 (10th ed. 2014). It differs from a tenancy in common in that ""each joint tenant has a right of survivorship to the other's share."" Id. A severance of a joint tenancy has the effect of terminating the right of survivorship between the joint tenants. Crowther v. Mower , 876 P.2d 876, 879 (Utah Ct. App. 1994). ""Either party to a joint tenancy may terminate it and the consent of the other tenants to the severance or termination is not required."" Id. at 878 (quotation simplified). Prior to 1996, severance of a joint tenancy was achieved ""by destroying one of the four unities essential to joint tenancy-time, title, interest, and possession."" In re Estate of Knickerbocker , 912 P.2d 969, 974 (Utah 1996). If a joint tenant desired to terminate the joint tenancy without mortgaging or selling his interest to a third party, the joint tenant had to arrange a "" 'strawman' transaction, in which he would convey his interest to a third party who would immediately convey it back to the grantor."" Id. Because conveyances of a joint tenant's interest to a third party did not need to be recorded, Crowther , 876 P.2d at 878-79, it follows that such ""strawman"" transactions likewise did not require recordation, see Knickerbocker , 912 P.2d at 976 (recognizing the existence of unrecorded strawman transactions by noting that ""a recorded strawman transaction ... is superior to an unrecorded one""). It was in 1996 that our Supreme Court issued Knickerbocker , in which it held that ""it is the intent of the parties, not the destruction of one of the four unities, that should govern"" the severance of joint tenancies. Id. at 975. It further dispensed with the requirement of ""strawman"" transactions in favor of recorded unilateral self-conveyances. Id. at 976 (""[A] joint tenant may effectively sever a joint tenancy by executing and recording a unilateral self-conveyance."") (emphasis added).","We granted this appeal to determine whether a person listed as a joint tenant with right of survivorship on checking and savings accounts sufficiently alleged claims for relief against a bank by asserting that the bank removed his name from the accounts without his consent and breached its duty to him as a co-owner of the account by accepting forged signature cards. We conclude that the allegations of the complaint are sufficient to survive the bank's motion to dismiss because, under Tennessee law: (1) each joint tenant with right of survivorship of a multiple-party account is deemed an owner of the account; (2) all joint tenants have presumptively equal ownership of account funds; (3) a contractual relationship arises between a bank and joint tenants upon the creation of joint tenancy bank accounts; (4) contracts cannot be modified except upon consent of the parties; and (5) no statute affords banks protection from liability for removing a joint tenant's name from an account without the joint tenant's consent. Accordingly, we reverse the decision of the Court of Appeals affirming the trial court's judgment granting the bank's motion to dismiss for failure to state a claim and remand this matter to the trial court for further proceedings consistent with this decision.","[7] The dispositive issue presented on appeal is whether Indiana Code Section 34-55-10-2(c)(5) (2018), which provides that ""[a]ny interest that the debtor has in real estate held as a tenant by the entireties"" is exempt from execution of a judgment lien, also exempts from execution an interest in real estate held as a joint tenant with right of survivorship. Flatrock contends that the trial court erred when it denied its motion to execute its judgment lien on the real estate. In particular, Flatrock maintains that, contrary to Tonia's assertion to the trial court, subsection 2(c)(5) of the exemption statute does not apply to Morris' and Tonia's interests in the real estate, which they owned as joint tenants with right of survivorship. We must agree.","[8] In Indiana, and generally, there are three forms of concurrent ownership of real estate, including joint tenancy, tenancy in common, and tenancy by the entireties. Powell v. Estate of Powell , 14 N.E.3d 46, 48 (Ind. Ct. App. 2014). A joint tenancy is a single estate in property owned by two or more persons under one instrument or act. I.C. § 32-17-2-1 ; Poulson v. Poulson , 691 N.E.2d 504, 506 (Ind. Ct. App. 1998) (citing 17 I.L.E. Joint Tenancy § 1, p. 60 (1959)). Upon the death of any one of the tenants, his share vests in the survivors. Poulson , 691 N.E.2d at 506. When a joint tenancy is created, each tenant acquires an equal right to share in the enjoyment of the land during their lives. Grathwohl v. Garrity , 871 N.E.2d 297, 301 (Ind. Ct. App. 2007) (citation omitted). ""It is well settled that a conveyance of his interest by one joint tenant during his lifetime operates as a severance of the joint tenancy as to the interest so conveyed, and [it] destroys the right of survivorship in the other joint tenants as to the part so conveyed."" Morgan v. Catherwood , 95 Ind. App. 266, 167 N.E. 618, 622 (1929). Each joint tenant may sell or mortgage his or her interest in the property to a third party. Grathwohl , 871 N.E.2d at 301. And the interest of each joint tenant ""is subject to execution."" Thornburg v. Wiggins , 135 Ind. 178, 34 N.E. 999, 1002 (1893).","The passages clarify several high-level legal rules and principles regarding joint tenancy, judgment liens, and their effects on property interests:

1. **Joint Tenancy Characteristics**: Joint tenancy includes ownership by two or more individuals with identical interests and the right of survivorship. Upon the death of a joint tenant, their interest typically transfers automatically to the surviving joint tenants (Black's Law Dictionary; Poulson v. Poulson).

2. **Effect of Judgment Liens**: A judgment lien can attach to a joint tenant's interest in property, rendering it subject to execution and foreclosure ([14]; Thornburg v. Wiggins). However, the survivorship right complicates matters, as demonstrated in various case law:
   - In some jurisdictions, the lien survives the death of a joint tenant, transferring the property subject to the lien ([15]; Chandler case, indicating the surviving tenant inherits the deceased tenant's share but subject to any liens).
   - Conversely, some cases suggest the lien may not survive if not specifically addressed by statute, implying that the survivorship right might extinguish the lien upon death unless litigation or execution action is taken beforehand ([BAP case]; Grathwohl, Crowther v. Mower).

3. **Severance and Alienation**: Joint tenants can unilaterally sever their joint tenancy, converting it to tenancy in common by actions such as conveyance or judgment lien attachment, thus eliminating the right of survivorship for that interest ([27]; Crowther v. Mower).

4. **Impact on Survivors and Other Tenants**: A surviving joint tenant may inherit the deceased joint tenant’s share free of personal obligations like liens if no severance occurred before death. The real property, upon the death of a co-tenant, typically vests fully in the surviving tenant by operation of law, often unaffected by personal judgment debts of the deceased ([8]; Indiana Code; Poulson v. Poulson).

These principles collectively indicate that joint tenancy includes a potent survivorship right potentially negating some third-party claims upon a tenant's death, unless effectively severed or alienated during the tenant's lifetime.","The passage explains that a joint tenancy is characterized by equal rights to the property's enjoyment and includes a right of survivorship, meaning that when one joint tenant dies, their interest passes to the surviving tenant. The joint tenancy exists as long as the unities of title, interest, and possession are maintained, and it is destroyed if any of these unities is severed, converting the ownership into a tenancy in common. Key for Tent's lien is that, with Hal's death, the joint tenancy was terminated, meaning the right of survivorship granted Wan full ownership of Blackacre immediately, nullifying any separate claims on Hal's prior interest."
mbe_747,,"Jones, who was driving his car at night, stopped the car and went into a nearby tavern for a drink. He left the car standing at the side of the road, projecting three feet into the traffic lane. The lights were on and his friend, Peters, was asleep in the back seat. Peters awoke, discovered the situation, and went back to sleep. Before Jones returned, his car was hit by an automobile approaching from the rear and driven by Davis. Peters was injured. Peters sued Davis and Jones jointly to recover the damages he suffered resulting from the accident. The jurisdiction has a pure comparative negligence rule and has abolished the defense of assumption of risk. In respect to other issues, the rules of the common law remain in effect. Peters should recover","nothing, if Peters was more negligent than either Davis or Jones.","nothing, unless the total of Davis's and Jones's negligence was greater than Peters's.","from Davis and Jones, jointly and severally, the amount of damages Peters suffered reduced by the percentage of the total negligence that is attributed to Peters.","from Davis and Jones, severally, a percentage of Peters's damages equal to the percentage of fault attributed to each of the defendants.",C,"Mississippi follows the ‚Äúcomparative negligence doctrine,‚Äù which measures negligence ‚Äúin terms of percentage, and any damages allowed shall be diminished in proportion to amount of negligence attributable to the person for whose injury, damage or death recovery is sought.‚Äù Meka, 67 So.3d at 23 (¬∂ 15) (citations omitted).","The case United States v. Peters , 333 F. Supp. 3d 366 (D. Vt. 2018) is instructive. In Peters , the Court addressed whether the government's tracking the cell phone of another person riding in the defendant's vehicle violated the defendant's rights under the Fourth Amendment. The defendant's argument was similar to that raised here; that is, the defendant argued in Peters that ""evidence obtained by tracking [the passenger's] cell phone, including the traffic stop which resulted in her arrest, is inadmissible against her absent a warrant because she had a reasonable expectation of privacy in her vehicle and her own real-time location information,"" and ""the government must obtain a warrant before private citizens are inadvertently tracked through real-time cell site location information obtained by surveillance of another target."" Id. at 377. The Court disagreed, and concluded:","This count related only to Peters and was not connected in any way to the other fraud and official misconduct charges. The affidavit averred that Peters had committed insurance fraud by submitting a $6,100 insurance claim for replacement of a police canine. Sergeant Peters had been rear-ended by a drunk driver and submitted claims to the driver's insurance company for Peters' personal injury in the amount of $10,000, and for $10,000 in property damage on behalf of the Town, which included $3,900 in damages to a police vehicle and $6,100 for the replacement of the police canine he said had to be retired due to injuries sustained in the accident. The affidavit claimed that, according to veterinary records, the canine had ""exhibited some soreness"" but had not ""sustain[ed] any injuries"" in the accident that led to the insurance claim. Instead, the treating veterinarian had previously diagnosed a spinal condition and had recommended restricted duty or retirement for the canine before the car accident.","On April 12, 2016, Mr. Miller filed a petition alleging that he was injured on or about October 9, 2015, when a vehicle driven by Lance Carruth struck him in the parking lot of a Lowe's store as he was walking out of the store. Mr. Miller named Mr. Carruth, and Mr. Carruth's insurer, Shelter Insurance Company, as Defendants. On June 2, 2016, Mr. Miller filed a supplemental and amending petition against Lowe's alleging that his injuries were caused by the fault and negligence of a Lowe's employee, including ""failing to warn;"" ""failing to keep a proper lookout;"" and ""failure to use reasonable care and caution."" On March 8, 2017, a judgment was signed dismissing Mr. Miller's claims against Mr. Carruth and Shelter, pursuant to a joint motion by the parties.","Wollmershauser's final argument is that the plaintiffs have failed to plead sufficient facts that would subject him to an award of punitive damages. Punitive damages are recoverable against a defendant, like Sgt. Wollmershauser, who is sued in his individual capacity under § 1983, where the individual's conduct ""is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others."" Smith v. Wade , 461 U.S. 30, 35, 54, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). As noted, there are material fact issues bearing on the reasonableness of Sgt. Wollmershauser's actions. Crediting the plaintiff's evidence as is required at this stage, Wollmershauser shot Starks - who was unarmed, kneeling on the floor, with his hands in the air - in the back. A reasonable jury could find such conduct to involve reckless or callous indifference to Mr. Starks's federally protected rights. Accordingly, Wollmershauser is not entitled to summary judgment on punitive damages.","Plaintiff Joseph Stelly Jr. appeals the summary judgment dismissing his claims against Defendants National Union Fire Insurance Company, Lexington Insurance Company, Emanuel J. Benoit, Brent C. Singleton, and American Eagle Logistics, LLC (Defendants) on the issue of causation. Mr. Stelly was injured as a result of a rear-end collision between Mark Maras and Emanuel Benoit, after which Mr. Maras's vehicle spun into the lane in which Mr. Stelly was traveling as a guest passenger. The trial court found that the evidence presented of Defendants' negligence was insufficient to overcome the rebuttable presumption of Mr. Maras's liability as a following motorist and granted Defendants' joint Motion for Summary Judgment, thereby dismissing Mr. Stelly's personal injury claims against them.","The Court agrees with CSAA. While Hunt is correct in asserting that the impetus for the fight occurred while he and Harper were driving, he sustained his injuries because of a physical assault on the side of the road, not in an auto collision. The insurance policy covers injuries that occur while the policy holder is actively using his motor vehicle; the fact that the policy holder traveled to an area by way of a motor vehicle does not automatically bring the injuries he sustained at that area into the purview of his insurance policy. For instance, someone who drives to a bar with his insured motor vehicle and suffers injuries in an ensuing bar fight cannot claim that his injuries resulted from the use of his vehicle simply because of his method of travel. Similarly, someone who develops the motivation to engage in particular conduct while driving also cannot claim that subsequent injuries arose out of the ""use"" of his motor vehicle. A ruling to the contrary would defeat the plain meaning of the word ""use,"" which the Ninth Circuit has previously stated to mean ""make use of or to enjoy."" Yandle v. Hardware Mut. Ins. Co. , 314 F.2d 435, 437 (9th Cir. 1963) (repairing a trailer axle did not constitute ""use"" or enjoyment of a motor vehicle). Hunt was certainly not making use of or enjoying his motor vehicle when he was standing on the side of the road and being attacked by Harper.","Plaintiff Carli A. Taylor asserts that Patrol Officer Ryan Moore violated her civil rights under 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act during a traffic stop in Falmouth, Massachusetts. She alleges that Moore used excessive force when, after stopping her for suspected drunk driving, he grabbed her arm, pulled her out of the car, put her on the ground, placed his knee on her back, and tased her. She also asserts a claim against the Town of Falmouth for its failure to discipline, train, or supervise its officers. Defendants move for summary judgment, arguing that Moore is protected by qualified immunity and that Taylor presents no evidence to support an allegation that the Town was deliberately indifferent to the rights of its citizens. After hearing, the Court ALLOWS IN PART and DENIES IN PART Defendants' motion for summary judgment (Docket No. 56).","¶ 1 The plaintiff, Kirk Raab of the Jo Daviess County Sheriff's Department, was driving his squad car west on Stagecoach Road in Scales Mound when he collided with a cow owned by the defendant, Kenneth Frank. Raab filed an action against Frank for injuries he suffered during the collision. Frank thereafter filed a third-party complaint for contribution against his neighbors, David A. and Virginia J. Grossen, asserting that the cow had gotten out through a fence they had failed to maintain. The trial court subsequently granted the Grossens' motion for summary judgment. Frank appeals from that order. We affirm in part, reverse in part, and remand for additional proceedings.","Following a criminal conviction, we review the evidence in the light most favorable to the verdict. Anthony v. State , 317 Ga. App. 807, 807, 732 S.E.2d 845 (2012). So viewed, the evidence showed that on the afternoon of May 8, 2010, the victim was sitting on a porch with a friend in Fulton County when two vehicles stopped in the middle of the street. One of the car occupants who had a ""beef"" with the victim jumped out and began to argue with him. The man who had jumped out of the car then struck the victim, and the two men began to fight. The fight briefly stopped, but started again. When the fight restarted, another man, who had a gun, jumped out of one of the cars, fired three shots in the air, struck the victim in the head and kneed him, and then fired about three shots at the victim. The shooter and the other man who had fought the victim got back into the cars and drove away. The victim died from a gunshot wound in his torso.","Plaintiffs Christopher Causey, Sr., Lynette Muse, Christopher Causey, Jr. and Priscilla Hopkins were passengers on a RTA bus traveling on Williams Boulevard in Jefferson Parish. The bus was being driven by RTA employee, Quelton Broussard (hereinafter ""Mr. Broussard""). While proceeding on the route, Mr. Broussard suddenly applied his brakes. Plaintiffs filed a petition for damages alleging the bus driver suddenly and unnecessarily applied brakes, causing plaintiffs to be injured. Mr. Causey maintained he injured his back and leg when Ms. Hopkins fell on his right leg causing him to hit his leg against the support pole on the bus. Ms. Hopkins alleged she injured her back, spine, and additional body parts and suffered from headaches as a result of being ejected from her seat. Ms. Muse asserted she injured her wrist, neck, face, and back and suffered from headaches as a result of being ejected from her seat and hitting another seat. Lastly, plaintiffs alleged Mr. Causey and Ms. Muse's minor son, Christopher Causey, Jr., injured his head and chest as a result of striking his head against the seat. RTA maintained that the sudden brake was a result of Mr. Broussard's attempt to avoid a collision with another vehicle crossing in front of the bus thus, creating a sudden emergency situation. As such, RTA denied negligence on its part.","The passages collectively do not directly address the specific legal question involving pure comparative negligence and joint liability in Peters's case. However, the essential legal principles relevant to this question are components of negligence and liability allocation among multiple parties, as well as how pure comparative negligence operates.

1. **Pure Comparative Negligence**: Under pure comparative negligence, a plaintiff's recovery is reduced by their percentage of fault, but they can still recover damages even if they are more at fault than the defendants. This is explained in the context of Peters potentially being able to recover despite his own negligence, as long as his recovery is adjusted based on his fault.

2. **Joint and Several Liability**: This common law principle allows a plaintiff to recover the entire amount of damages from any defendant found liable, regardless of each defendant's degree of fault. This is hinted at through various lawsuit summaries where multiple defendants are involved, indicating shared responsibility for damages.

3. **Relevance of Defendant Negligence**: Legal cases usually examine the negligence contributions of all parties involved, emphasizing that recovery can be influenced by weighing each party's negligence. This principle is implied in the discussions around various personal injury and negligence lawsuits.

Thus, the overarching legal guideline derived from these passages is that Peters, under pure comparative negligence and joint liability principles, should be able to recover his damages reduced proportionately by his fault, with potential joint and several liability holding both Jones and Davis accountable for the total recoverable damages.","a. The Oregon Rule, The Pennsylvania Rule, and Res Ipsa Loquitur","Comparative negligence jurisdictions allow a plaintiff to recover some percentage of his damages even though he was contributorily negligent intcausing the accident. Pure comparative negligence allows a plaintiff some recovery no matter how great his negligence was. On the MBE, examinees are instructed to assume that pure comparative negligence, with joint and several liability, is the applicable rule unless stated otherwise The doctrine of joint and several liability makes each of several tortfeasors liable to the plaintiff for the entire amount of damages to which the plaintiff is entitled. However, if one tortfeasor does have to pay the plaintiff the entire judgment, the rule of contribution allows the paying tortfeasor to recover the excess over his share from the nonpaying tortfeasor. Contribution in most comparative negligence jurisdictions is based on comparative fault, whereby the nonpaying tortfeasor is required to contribute an amount in proportion to his relative fault.","Defendant was driving under the influence of intoxicants late at night when he struck the victim, who had walked onto the road in a dark area that was not marked for pedestrian crossing. He pleaded guilty to one count of driving under the influence of intoxicants and one count of assault in the third degree, but he resisted the state's request for restitution in the amount of the victim's full medical bills. Defendant offered evidence that the victim's own negligence was the primary cause of the collision and urged the trial court to apply the civil doctrine of comparative fault to reduce the requested restitution. The trial court refused to consider the victim's alleged negligence and ordered defendant to pay the requested restitution.","contributory negligence: Contributory negligence is a common law tort rule which bars plaintiffs from recovering for the negligence of others if they too were negligent in causing the harm. Contributory negligence has been replaced in many jurisdictions with the doctrine of comparative negligence. In the field of tort law, a plaintiff can recover against a negligent defendant by proving that: The defendant owed a duty to the plaintiff. The defendant breached that duty to the plaintiff. The plaintiff suffered harm due to the defendant‚Äôs breach. In a jurisdiction that follows contributory negligence, a plaintiff who is at all negligent cannot recover, even if they establish the above elements. For the purposes of contributory negligence, the degree of the plaintiff‚Äôs/defendant‚Äôs respective negligence is irrelevant, thus a plaintiff who was 1% negligent will receive nothing from a defendant who was 99% negligent. The advantage of this all or nothing rule is that it does not require the courts to accurately determine the degree of blame each party shares for the harm. On the other hand, the application of contributory negligence can lead to outcomes society deems inequitable. Because of the all or nothing nature of contributory negligence, courts developed a collection of exceptions to standard contributory negligence over the years. For example, under the doctrine of last clear chance, a negligent plaintiff can still recover if the defendant was the only party capable of preventing the harm through reasonable means and nonetheless failed to do so. The majority of jurisdictions, however, have gone even further in limiting the application of contributory negligence by eliminating the doctrine altogether in favor of comparative negligence. Under comparative negligence, a negligent plaintiff can recover against a negligent defendant for the defendant‚Äôs share of the blame. For example, a plaintiff who was 5% negligent can recover compensation for 95% of the harm. Nonetheless, the doctrine of comparative negligence is still followed in Maryland, Virginia, Alabama, and North Carolina. [Last updated in July of 2022 by the Wex Definitions Team]","¬∂1 This case stems from a car accident in which Defendant Ricardo Carrera ran a stop sign and struck Plaintiff Kathleen Pinney's vehicle. Subsequently, Plaintiff filed suit, claiming personal injuries. At trial, Defendant made three separate oral motions for judgment as a matter of law-each on a discrete point of law. One of those motions was granted, and two were denied. At the close of his case-in-chief, Defendant again renewed the third motion for judgment as a matter of law related to Utah's no-fault tort threshold, but the court again denied the motion. Prior to submission of the case to the jury, Defendant also objected to the trial court's refusal to give a requested jury instruction. The jury returned a verdict in favor of Plaintiff, awarding $300,000 in general damages. Defendant then filed a motion for judgment notwithstanding the verdict, or alternatively, for a new trial, which the trial court denied. Defendant appeals and we affirm.","comparative negligence: Comparative negligence is a tort principle used by the court to reduce the amount of damages that a plaintiff can recover in a negligence-based claim according to the degree of negligence each party contributed to the incident. Specifically, when an injured victim was partially at fault because of their own negligence, the court may assign a percentage of fault to both the injured victim and the defendant. For instance, if the court assigns 60% fault to the defendant and 40% to the plaintiff, the plaintiff may only recover 60% of the damages, rather than the full. There are two types of comparative negligence in the United States, as well as contributory negligence, so damages awarded vary from state to state. Pure Comparative Negligence: Under the pure comparative negligence rule, the state allows the plaintiff to claim damages for the 1% they are not at fault even when they are 99% at fault. In other words, the amount of damages that the plaintiff can collect is limited based on the assigned fault determined by the court. Almost one-third of states follow this rule, including California, Florida, and New York. Modified Comparative Negligence: Two types of modified comparative negligence exist: 50 percent bar rule and 51 percent bar rule. Under the 50 percent bar rule: the plaintiff may not recover damages if they are found to be 50% or more at fault. Under the 51 percent bar rule: the plaintiff may not recover damages if they are assigned 51% or more of the fault. The modified comparative negligence principle is followed by the majority of states. Compare: Contributory Negligence: Under the contributory negligence rule, the plaintiff cannot recover any damages if they contributed in any way to the incident. In other words, the state recognizing contributory negligence rule prevents the plaintiff from collecting damages even when they were found to only be 1% negligent. Only four states and the District of Columbia recognize the contributory negligence rule: Alabama, Maryland, North Carolina, and Virginia. [Last updated in July of 2022 by the Wex Definitions Team]","¬∂44 Nutt contends, in the first instance, that the allocation of negligence between a plaintiff and a defendant is a question of fact that must be decided by a jury. He is incorrect. ""While the apportionment of negligence is ordinarily a jury question, where the plaintiff's negligence clearly exceeds the defendant's, courts may so hold as a matter of law."" Hertelendy v. Agway Ins. Co. , 177 Wis. 2d 329, 334, 501 N.W.2d 903 (Ct. App. 1993). In fact, our supreme court has held that, ""when it is apparent to the court that the plaintiff's negligence is, as a matter of law, greater than any negligence on defendant's part, it is the court's duty to so hold."" Peters v. Menard, Inc. , 224 Wis. 2d 174, 193, 589 N.W.2d 395 (1999).","¬∂1 A drunk driver struck and disabled another vehicle, then fled into the early morning darkness. A Good Samaritan stopped to help the vehicle that had been struck. While helping, the Good Samaritan sustained fatal injuries due to a secondary accident. We are asked whether, as a matter of law, the drunk driver's acts were too attenuated from the Good Samaritan's death for criminal liability to attach. We conclude that the drunk driver's acts were the legal cause of the Good Samaritan's death because those acts were criminal, caused direct harm as well as risk of further harm, and occurred close in time and location to the ultimate harm that befell the Good Samaritan. We further conclude that the issue of intervening, superseding cause was proper for the jury to determine as a matter of actual cause using a reasonable foreseeability standard and that the vehicular homicide conviction is supported by sufficient evidence. Accordingly, we hold that the drunk driver's acts proximately caused the Good Samaritan's death, and we affirm.","In this negligence case, Appellant, Shawn Restal, appeals a final judgment entered by the trial court following a jury verdict for damages in favor of Appellee, Bridget Nocera. Appellant argues that the trial court erred in granting partial summary judgment on the issues of liability and causation. We agree in part, finding that there were issues of material fact that overcame the presumption that Appellant was solely at fault for the vehicle collision at issue in this case. Therefore, we affirm the summary judgment as to Appellant's negligence but reverse on the issue of Appellee's comparative negligence and remand for a new trial.","In jurisdictions applying pure comparative negligence (which you are to assume is the rule unless otherwise stated), implied assumption of risk is usually treated as a variant of contributory negligence. If the plaintiff unreasonably assumed the risk of injury, he will be considered contributorily negligent and his damages will be reduced.","The principle of pure comparative negligence allows a plaintiff to recover damages even if they are significantly negligent, with their recovery reduced by their percentage of fault. The doctrine of joint and several liability means that each defendant can be held responsible for the entire amount of damages, but can seek contribution from the other defendant based on their relative fault. Assumption of risk has been abolished in this jurisdiction, thus plaintiffs are not barred from recovery even if they knowingly engaged in risky behavior. Instead, any voluntary assumption of risk is treated as a factor to apportion comparative negligence. Furthermore, courts will uphold the rule that a plaintiff who was negligent will have their damages reduced accordingly, yet they can still recover some portion of damages from the defendants unless their negligence exceeds a specific threshold in modified jurisdictions, which is not applicable here. Finally, apportionment of negligence is generally a fact question for the jury, unless it is clear that the plaintiff’s negligence primarily caused the harm.","The passage highlights that Mississippi follows the comparative negligence doctrine, under which negligence is measured in percentages and any damages awarded are reduced according to the percentage of negligence attributable to the injured party. This approach ensures that a plaintiff’s recovery is diminished in direct proportion to their own fault in contributing to their injuries. Thus, if the plaintiff is found to be partially negligent, their overall damages are proportionately reduced by their degree of fault."
mbe_779,,"Able was the owner of Blackacre, an undeveloped city lot. Able and Baker executed a written document in which Able agreed to sell Blackacre to Baker and Baker agreed to buy Blackacre from Able for $100,000; the document did not provide for an earnest money down payment. Able recorded the document, as authorized by statute. Able orally gave Baker permission to park his car on Blackacre without charge prior to the closing. Thereafter, Baker frequently parked his car on Blackacre. Another property came on the market that Baker wanted more than Blackacre. Baker decided to try to escape any obligation to Able. Baker had been told that contracts for the purchase and sale of real property require consideration and concluded that because he had made no earnest money down payment, he could refuse to close and not be liable. Baker notified Able of his intention not to close and, in fact, did refuse to close on the date set for the closing. Able brought an appropriate action to compel specific performance by Baker. If Able wins, it will be because",Baker's use of Blackacre for parking constitutes part performance.,general contract rules regarding consideration apply to real estate contracts.,the doctrine of equitable conversion applies.,the document was recorded.,B,"‚ÄúConversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.‚Äù To establish a claim for conversion, the plaintiff must prove (1) that she had a possessory interest in the property; (2) that the defendant interfered with the plaintiff's right to possess the property; (3) that the defendant intended to interfere with plaintiff's possession; and (4) that the defendant's act was the legal cause of the plaintiff's loss of the property.30 Where the plaintiff voluntarily places her property with the defendant, the ‚Äúdefendant ordinarily is not required to do more than permit the plaintiff to come and get the chattel.‚Äù","We first review the duties the respondent violated. According to the PCC, the respondent violated duties to his clients, the legal system, and the public. We agree. In the Haase matter, the respondent violated his duty of loyalty by representing both the seller and an interested purchaser of the Fogg property. As to the Florida matter, the respondent violated his duty to Blackport by failing to advise Wood and Blackport of his limitations in representing them while the injunction was in place and by facilitating the sale of the Idaho property in violation of the injunction. Furthermore, by violating the injunction, the respondent violated his duty to obey court orders, an obligation that he owes to the legal system. His conduct during the Florida matter also violated the duties of candor and honesty that he owes to the public. Next, we consider the respondent's mental state at the time of his violations, which may be one of intent, knowledge, or negligence. Id. at 180, 54 A.3d 762. The volitional nature of the acts, and not the external pressure that could potentially have hindered the judgment, is relevant. Id. The PCC determined that he acted knowingly and that the evidence supported an inference that the respondent ""acted intentionally, that is, with a conscious objective to achieve a result."" We agree. The respondent knowingly violated the federal injunction when he sought to consummate the sale of the Idaho property and disburse the funds at the direction of Wood. In addition, as to the Haase matter, the respondent knowingly brought a foreclosure action against Mr. Fogg for an amount exceeding what was owed to him.","In sum, the plaintiff in this case was merely a private party with neither a property interest nor an existing business that would be adversely affected by the 2013 taking. He also had no right to bid on the Yawkey Way easement after it was taken by the BRA and sold pursuant to a proper § 46 (f ) process, and even if the process were somehow flawed, the easement would revert to the city, which had no obligation to sell it. He was thus owed no duty by either the BRA or the city. Elks Lodge, 403 Mass. at 545, 531 N.E.2d 1233 (""a plaintiff must allege a breach of duty owed to it by the public defendant"" to have standing). Moreover, even if the city had decided to sell the Yawkey Way easement and put it out to bid, and even if the plaintiff won the bid, the plaintiff could not have used it to sell concessions without the consent of the Red Sox and the other adjoining fee owners -- and indeed, there is no allegation that such consent would have been provided. Without the ability to operate concessions, there could be no economic injury to the plaintiff. For all these reasons, the plaintiff was owed no legal duty by a public defendant, and his claim of injury is entirely ""speculative, remote, and indirect"" (citation omitted). Arbella Mut. Ins. Co. v. Commissioner of Ins., 456 Mass. 66, 82, 921 N.E.2d 537 (2010). See Ginther, 427 Mass. at 323, 693 N.E.2d 153 (""the complained of injury must be a direct consequence of the complained of action""). He therefore lacks standing to challenge the 2013 taking. Conclusion. Because the plaintiff lacks standing to challenge the BRA's actions in this case, we affirm the motion judge's allowance of the BRA's motion for judgment on the pleadings, as well as the denial of the plaintiff's motion for leave to amend his complaint.","Relying on Roy v. George W. Greene, Inc., 404 Mass. 67, 533 N.E.2d 1323 (1989), the trial court concluded that ""the option to purchase [under paragraph 18B] cannot be triggered by the Keatings' intent to sell because the Keatings must have an acceptable offer to intend to sell the property."" But Roy dealt with a right of first refusal. See Roy, 533 N.E.2d at 1324. A third party offer is necessary to trigger a right of first refusal because it "" 'refer[s] to a right that arises only after the owner has received an enforceable offer to buy.' "" LeBaron v. Wight, 156 N.H. 583, 585, 938 A.2d 891 (2007) (quoting Roy, 533 N.E.2d at 1325 ). Here, it is paragraph 18C, not paragraph 18B, that explicitly deals with the right of first refusal. As the trial court explained in its order, the ""first option to purchase"" in paragraph 18B ""does not provide a traditional right of first refusal."" Thus, the trial court's subsequent application of right of first refusal principles to the language used in paragraph 18B to conclude that a seller can only have the intent to sell when there is a third party purchaser was error.","Fraud and ""exploitative overreaching"" may be demonstrated where collusive behavior has occurred that restricts the bidding for property or that seeks to divert value to a mortgagee that otherwise would have gone to a mortgagor. See, e.g. , Polish Natl. Alliance v. White Eagle Hall Co. , 98 A.D.2d 400, 408, 470 N.Y.S.2d 642, 650 (2d Dep't 1983) (holding that ""[t]he essence of a judicial sale is a full and free opportunity for bidders to compete, and any agreement that unfairly restricts that opportunity is contrary to public policy"" and further holding that ""a mortgagee ... cannot enter into an agreement to benefit itself in excess of the judgment due at the expense of the mortgagor""); Westbury Federal Sav. & Loan Asso. v. Quinton Enterprises, Inc. , 88 A.D.2d 950, 951, 451 N.Y.S.2d 188, 188 (2d Dep't 1982) (submission of appraisal as evidence of value, without disclosure of the existence of a higher offer, was a misrepresentation to the court that infected the calculation of the deficiency and that warranted a new determination of the deficiency). Here, Mr. Futterman has alleged that RWN engaged in deliberately manipulative or collusive behavior during the auction process that was designed to discourage bidders, or to limit the amounts they would bid, or to defer bids entirely so that RWN (and not the Ladera Debtors and their creditors and owners) could reap the benefit of a sale at a higher price. The Court expresses no view at this point as to whether the evidence supports any of these accusations. However, proof of such deliberately wrongful conduct would constitute grounds to invoke the court's inherent equitable authority under New York law to re-examine the deficiency claim insofar as it relates to Mr. Futterman's obligations under the Guaranty.","The second requirement for a pretended sale is that it contains a condition of defeasance. Tex. Const. art. XVI, § 50 (c); Perry , 345 F.3d at 313. In Paull & Partners's view, the transaction to Waterdog cannot be a pretended sale because it lacks such a condition of defeasance, entitling it to summary judgment. (ECF No. 20 at 12 ). Whitcomb argues that an explicit written or oral agreement is not required to establish the presence of a condition of defeasance. (ECF No. 22 at 11). Whitcomb further suggests that the existence of a condition of defeasance in this dispute is a genuine issue of material fact as demonstrated through the parties' intent and actions. (ECF No. 22 at 11).","The voluntary payment doctrine provides that one who has knowledge of the material facts and makes a payment voluntarily cannot later recover it on the ground he or she was under no legal obligation to make the payment in the first place. Minn. Pipe & Equip. Co. v. Ameron Int'l Corp. , 938 F.Supp.2d 862, 874 (D. Minn. 2013). But the voluntary payment doctrine does not apply when the payor was under a legal obligation to pay. Id. at 875. Here, Hansmeier sought permission from the bankruptcy court to sell the homestead property, and thereafter paid $ 71,620.90 of the proceeds of the sale to Appellants to satisfy the AF Holdings judgment lien on the property. The timing of that payment, in December 2015, is critical to the applicability of the voluntary payment doctrine. It is undisputed that, in December 2015, the AF Holdings judgment had not yet been vacated and Hansmeier was under a legal obligation to pay Appellants. The fact that the First Circuit later voided that legal obligation does not demonstrate that Hansmeier ""was under no legal obligation to make the payment in the first place ,"" which is a ""key premise of the voluntary payment doctrine."" Id. at 874-75 (emphasis added). Moreover, the bankruptcy court's December 3, 2015 order authorizing the sale of Hansmeier's homestead property created an additional legal obligation to pay. Even if Hansmeier subjectively believed that the AF Holdings judgment was improper, his subjective belief has no bearing on whether he was legally obligated to make that payment in December 2015. He indisputably was legally obligated to do so.","An additional reason for the trial court to refuse Gasaway's proposed instructions was that they constituted an improper comment on the weight of the evidence. See TEX. R. CIV. P. 277. ""The court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers...."" Id. A jury instruction constitutes an impermissible comment on the weight of the evidence when it encourages the jury to give undue weight to certain evidence. Ganesan v. Vallabhaneni , 96 S.W.3d 345, 351 (Tex. App.-Austin 2002, pet. denied) (trial court did not abuse its discretion in refusing proposed instructions). Gasaway's instructions would have improperly focused the jury on the issue of marriage, not the issue of capacity. Accordingly, the trial court did not abuse its discretion by refusing to include the instructions. See Shupe , 192 S.W.3d at 580 (holding that omission of negligent entrustment issue was harmless); see also State v. Luby's Fuddruckers Rests, LLC , 531 S.W.3d 810, 822 (Tex. App.-Corpus Christi 2017, no pet.) ; Muhs v. Whataburger, Inc. , No. 13-09-00434-CV, 2010 WL 4657955, at *9 (Tex. App.-Corpus Christi Nov. 18, 2010, pet. denied) (mem. op.).","Second, plaintiffs contend that a right of first refusal is different from a purchase option, so Spaulding 's presumptive rule against carrying forward the latter into a holdover tenancy should not extend to the former. A presumption against carrying forward options to purchase makes sense, as Spaulding itself noted, because such options obligate a landowner to accept an offer at a fixed price, and it is reasonable to presume that the parties did not intend such an offer to continue ""indefinite[ly]"" under a holdover tenancy. ( Spaulding , supra , 30 Cal.2d at pp. 143-144, 180 P.2d 691.) Rights of first refusal, by contrast, obligate a landowner to accept an offer only after it has decided to sell and only if the right holder's offer meets or exceeds a competing offer; thus, plaintiffs reason, rights of first refusal-unlike options to purchase-do not ""tie"" the landowner into accepting an offer at ""a fixed price which may have become inadequate by lapse of time"" during the holdover tenancy. (Accord, Tubbs , supra , 390 N.Y.S.2d at p. 793.) A presumption against carrying forward a right of first refusal into a holdover tenancy, plaintiffs conclude, is accordingly less compelling. This argument is not without persuasive force, but it does warrant creating a special rule for rights of first refusal because a right of first refusal is still, at bottom, a type of purchase option, ( Campbell , supra , 71 Cal.App.4th at pp. 206-207, 83 Cal.Rptr.2d 696 ) and because the chief rationale underlying Spaulding 's presumption-ensuring stability in commercial tenancies-applies with equal force to both rights of first refusal and purchase options. Put differently, the absence of a further reason not to carry forward rights of first refusal does not undermine the other reasons for not doing so.","In this case, the plaintiff met his obligation by conducting a reasonable inspection of the premises and searching the available public records concerning the title. In the words of the Court: “...It should be apparent, however, that the most meticulous inspection and the search would not reveal the presence of [ghosts] at the premises or unearth the property's ghoulish reputation in the community. Therefore, there is no sound policy reason to deny plaintiff relief for failing to discover a state of affairs which the most prudent purchaser would not be expected to even contemplate...”. To the extent that (i) the reputational condition of the house was created by the seller; (ii) such reputational condition materially impaired the value of the contract; (iii) it was peculiarly within the knowledge of the seller defendant; and (iv) it was unlikely to be discovered by a prudent purchaser exercising due care; nondisclosure of such information constituted a basis for rescission as a matter of equity. Finally, the court noted that the defendant informed the public-at-large, to whom she had no legal relationship, about the supernatural occurrences on her property. Therefore, she owed no less a duty to her contracting counterparty, the buyer plaintiff. The seller defendant not only took unfair advantage of the buyer's ignorance but also created a reputational condition about which he was unlikely to inquire. Thus, enforcement of the contract would be offensive to the court's sense of equity.  Based on all the above, the Appellate Court modified the judgment of the Supreme Court, reinstating the cause of action seeking rescission of the contract. See: Stambovsky v. Ackley, 169 AD 2d 254 - NY: Appellate Div., 1st Dept. 1991 [Last updated in September of 2021 by the Wex Definitions Team]","[¶16] Honsey argues that he did not freely consent to the guaranty, which makes it voidable under N.D.C.C. § 9-03-04, because he made a mistake of fact, see N.D.C.C. § 9-03-13, and believed he signed the guaranty on behalf of Pinky's and not in his individual capacity. A mistake of fact consists of ""[a]n unconscious ignorance or forgetfulness of fact, past or present, material to the contract,"" or the ""[b]elief in the present existence of a thing material to the contract which does not exist, or in the past existence of such a thing which has not existed."" N.D.C.C. § 9-03-13. Honsey's mistaken belief that by signing the personal guaranty in both his personal and representative capacities Pinky's was guaranteeing its own debt does not amount to a mistake of fact as defined by the statute. Honsey's misunderstanding of the effect of signing the guaranty in dual capacities was not a mistake of fact because he was aware of the fact that he needed to guarantee the debt for Frontier to continue factoring for the sub-subcontractors. See Lange v. Cusey , 379 N.W.2d 775, 779 (N.D. 1985) (misunderstanding of the effect of a legal document is not a mistake of fact if person claiming mistake was aware of the facts as they really were). Honsey's misunderstanding also does not qualify as a mistake of law under N.D.C.C. § 9-03-14, which requires either a ""misapprehension of the law by all parties"" or a ""misapprehension of the law by one party of which the others are aware at the time of contracting, but which they do not rectify."" There is no evidence that both parties were aware of Honsey's misunderstanding or that Frontier was aware of Honsey's misunderstanding and failed to rectify it. See Lange , at 779.","From the provided passages, the relevant principles and rules that would help answer the question about the enforceability of the real estate contract between Able and Baker include the following:

1. **General Contract Rules Regarding Consideration**:
    - The consideration required for a contract need not necessarily be in the form of an earnest money down payment. The presence of mutual promises in a contract to sell and buy property can be sufficient consideration to create a binding contract. (Minn. Pipe & Equip. Co. v. Ameron Int'l Corp., 938 F.Supp.2d 862, 874).

2. **Specific Performance in Real Estate Contracts**:
    - Specific performance is a common remedy in real estate transactions because real property is considered unique. This doctrine enforces the performance of the contract according to its precise terms when monetary compensation is inadequate. In other words, if a valid contract exists, a court can compel a party to complete the transaction. (Fraud and ""exploitative overreaching"" passage).

3. **Part Performance Doctrine**:
    - Part performance can take an oral contract for the sale of real property out of the Statute of Frauds, permitting enforcement even though it is not in writing. Actions like taking possession or making improvements to the property can be considered part performance. In this case, Baker’s regular parking on Blackacre with Able’s permission prior to closing might constitute part performance, signaling the commencement of the performance called for by the contract. (Relying on Roy v. George W. Greene, Inc., passage).

4. **Equitable Principles**:
    - Equitable conversion is a principle where, upon the signing of a valid contract to sell real property, the buyer becomes the equitable owner of the property, and the seller retains a security interest. This doctrine would further support the enforceability of the agreement in case of the buyer's refusal to close. (Doctrine of equitable conversion passage).

These principles collectively suggest legal support for the enforceability of the specific performance remedy sought by Able, based on the validity of the written contract and the actions taken by Baker, which might demonstrate part performance.","Under the doctrine of part performance, when an agreement to convey real property fails to meet the requirements of the statute of frauds-as in this case where the alleged agreement was not reduced to writing-the agreement may nevertheless be specifically enforced when the purchaser has partly performed the agreement.","A contract was formed here when the parties orally agreed to the sale of the property. However, the contract was unenforceable at that time because, under the Statute of Frauds, a contract for the sale of land is unenforceable unless a memorandum containing the contract's essential terms is signed by the party to be charged. Specific performance is allowed when the legal remedy (damages) would be inadequate (usually with contracts to purchase land).","The Court finds that specific performance is an inappropriate remedy in this cause of action based upon the fact that [the contract to purchase] shows that the parties contemplated a remedy for the closing not occurring ""through no fault of the buyer."" The earnest money in this circumstance was valued at $ 25,000. The Court, therefore, finds the judgment for this amount is appropriate instead of a specific performance remedy....","At the same time, that special defense generally does not apply when a plaintiff demonstrates partial performance with contractual obligations. As this court has explained, ""[t]he doctrine of part performance ... is an exception to the statute of frauds.... This doctrine originated to prevent the statute of frauds from becoming an engine of fraud."" (Citation omitted; internal quotation marks omitted.) Red Buff Rita, Inc. v. Moutinho , 151 Conn. App. 549, 554-55, 96 A.3d 581 (2014). ""[T]he elements required for part performance are: (1) statements, acts or omissions that lead a party to act to his detriment in reliance on the contract; (2) knowledge or assent to the party's actions in reliance on the contract; and (3) acts that unmistakably point to the contract.... Under this test, two separate but related criteria are met that warrant precluding a party from asserting the statute of frauds.... First, part performance satisfies the evidentiary function of the statute of frauds by providing proof of the contract itself.... Second, the inducement of reliance on the oral agreement implicates the equitable principle underlying estoppel because repudiation of the contract by the other party would amount to the perpetration of a fraud."" (Internal quotation marks omitted.) SS-II, LLC v. Bridge Street Associates , 293 Conn. 287, 295-96, 977 A.2d 189 (2009). Our review of a court's determination that a party has demonstrated part performance of a contract is governed by the clearly erroneous standard of review. See Harley v. Indian Spring Land Co. , 123 Conn. App. 800, 826-30, 3 A.3d 992 (2010).","The doctrine of part performance may be used to enforce an otherwise invalid oral contract of sale, provided the acts of part performance unequivocally prove the existence of the contract.","a. Statute of Frauds. The Statute of Frauds generally requires that all contracts for the sale of land be in writing. G. L. c. 259, § 1. See Bibi v. Courville, 357 Mass. 782 (1970). However, ""[a] plaintiff's detrimental reliance on, or part performance of, an oral agreement to convey property may estop the defendant from pleading the Statute of Frauds as a defense."" Nessralla v. Peck, 403 Mass. 757, 761 (1989). Payment alone is insufficient to show part performance. See Andrews v. Charon, 289 Mass. 1, 5-6 (1935). Part performance may be demonstrated by evidence that the party physically occupied and made improvements to the property in reliance upon the agreement. Alexander v. Snell, 12 Mass. App. Ct. 323, 325 (1981). Sullivan did not allege that he attempted to improve these parcels, nor does Sullivan assert on appeal that he occupied either parcel. Accordingly, there was no part performance and the claims are barred by the Statute of Frauds.","The trial court did not err in recognizing the general principle that specific performance is available only when damages at law would be insufficient due to the special nature of the subject matter, or when damages are impractical when it is impossible to arrive at a measure of damages with any sufficient degree of certainty. Trial Court 1925(a) Opinion, 1/14/17, at 5-6 (citing First Nat'l State Bank v. Commonwealth Fed. Sav. & Loan Ass'n , 610 F.2d 164, 174 (3d. Cir. 1979) ). Nor can we find error with the trial court's conclusion there was nothing unusually special about the Property that would make an award of damages insufficient. However, we do find error in the trial court's failure to award as damages the full purchase price for the Property (less deposit monies paid and retained). The trial court erred by faulting the Maisanos for not adequately proving the current market value of the Property. They did not need to do so, as the proper measure of damages for specific performance was the purchase price. To the extent the trial court declined to award the purchase price as damages because, under general principles of law, specific performance is not available where damages are ascertainable, the court committed legal error. As stated, in the case of a seller's claim for breach of a real estate sales agreement, a claim for specific performance is a demand for the purchase price, even though it is for an ascertainable amount of damages. Accordingly, we reverse the trial court's judgment with respect to damages and remand this case to the trial court for a new damage trial.","A promise creating an interest in land must be in writing to be enforceable. This includes not only agreements for the sale of real property or an interest therein, but also leases for more than one year. However, under the part performance doctrine, conduct that unequivocally indicates that the parties have contracted for the sale of land will take the contract out of the Statute of Frauds.","In order to invoke the doctrine of part-performance, the underlying agreement must be proven by clear and convincing evidence, including the material term of consideration, which must be definite and certain. Bear Island, 125 Idaho at 722, 874 P.2d at 533.","What a party must show to invoke the doctrine of part-performance is essentially two-fold: (1) the underlying agreement must be clearly established and (2) the partial performance must be sufficient, shown by clear and convincing evidence, and directly referable to the established oral agreement. Id. Security has failed to establish an agreement between the LLC and Crumb; thus, the application of the doctrine of part-performance is precluded.","The key legal principles addressing the enforceability of the real property contract between Able and Baker focus on the doctrine of part performance, the Statute of Frauds, and the sufficiency of consideration in real estate transactions. 

The Statute of Frauds generally requires that contracts for the sale of land be in writing and signed by the party to be charged (typically the buyer in a case like this), in order to be enforceable. However, the doctrine of part performance can serve as an exception to the Statute of Frauds. This doctrine hinges on whether actions taken by the purchaser unequivocally indicate the existence of the contract. For example, part performance can be demonstrated if the purchaser physically occupied the land or made improvements in reliance on the agreement. Acts of part performance must be clear and convincing, specifically pointing to the existence of the contract and leading the purchaser to act to their detriment.

In this context, Baker’s frequent use of Blackacre for parking—often allowed by Able—could potentially be viewed as part performance, satisfying the evidentiary needs to bring the agreement out of the Statute of Frauds. This usage would need to unmistakably point to the underlying agreement and show substantial reliance by Baker such that it would be inequitable for Able to deny the contract’s validity.

Additionally, recording the written agreement lends further credence to its enforceability, fulfilling statutory requirements even if no earnest money was made. General contract rules of consideration dictate that the promise to buy and the promise to sell constitute legal consideration, sufficient to uphold a real estate contract without the necessity of an earnest money down payment.

Thus, a court may find that Baker's actions amount to part performance of the contract, supporting Able’s claim for specific performance due to the inadequacy of legal damages in real estate transactions. This ensures the enforceability of the contract despite the lack of initial down payment.","The passage provided discusses the legal concept of conversion, which is the intentional exercise of dominion or control over someone else's chattel that severely interferes with their rights and can result in the requirement to pay the full value of the chattel to its owner. To establish conversion, a plaintiff must show possessory interest in the property, interference by the defendant, the defendant's intent to interfere, and causation of loss. It also notes that if the plaintiff voluntarily placed the chattel with the defendant, the defendant typically only needs to allow the plaintiff to retrieve it.

This passage, however, is not relevant to the legal issue in the question concerning whether Baker can refuse to close on the sale of Blackacre and be free of liability. The key issue revolves around real estate contract principles, not the tort of conversion regarding chattels."
mbe_826,,"Adam owns his home, Blackacre, which was mortgaged to Bank by a duly recorded purchase money mortgage. Last year, Adam replaced all of Blackacre's old windows with new windows. Each new window consists of a window frame with three inserts: regular windows, storm windows, and screens. The windows are designed so that each insert can be easily inserted or removed from the window frame without tools to adjust to seasonal change and to facilitate the cleaning of the inserts. The new windows were expensive. Adam purchased them on credit, signed a financing statement, and granted a security interest in the windows to Vend, the supplier of the windows. Vend promptly and properly filed and recorded the financing statement before the windows were installed. Adam stored the old windows in the basement of Blackacre. This year, Adam has suffered severe financial reverses and has defaulted on his mortgage obligation to Bank and on his obligation to Vend. Bank brought an appropriate action to enjoin Vend from its proposed repossession of the window inserts. In the action, the court should rule for","Bank, because its mortgage was recorded first.","Bank, because windows and screens, no matter their characteristics, are an integral part of a house.","Vend, because the inserts are removable.","Vend, because the availability of the old windows enables Bank to return Blackacre to its original condition.",C,"Accordingly, tenants are necessary parties to a foreclosure action (see 6820 Ridge Realty v. Goldman, 263 A.D.2d 22, 25, 701 N.Y.S.2d 69; Polish Natl. Alliance of Brooklyn v. White Eagle Hall Co., 98 A.D.2d 400, 404, 470 N.Y.S.2d 642).","Having concluded that the cleaning of the building's facade was part of the renovation, we must next determine whether the damage to the windows, which was a direct result of this cleaning, was related to the renovation, thereby triggering the exclusion. The policy also fails to define ""relating to""; therefore, we must again turn to available dictionary definitions to determine the meaning of the term. ""Related"" is defined as ""connected by reason of an established or discoverable relation ...."" Merriam-Webster's Collegiate Dictionary, supra. Additionally, our courts have consistently given the term ""relating to"" a broad meaning that comports with the dictionary definition of the term. See, e.g., Brennan v. Brennan Associates , 293 Conn. 60, 79 n.12, 977 A.2d 107 (2009) (defining ""relating to"" as ""to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with"" [internal quotation marks omitted] ). In the present case, the damage to the windows was not merely connected to the cleaning of the building's facade, it was a direct result of the cleaning. The 777 entities admitted this fact when they stated that ""there simply are not two concurrent causes [of the loss]: Armani accidentally sprayed the cleaning media onto the windows, causing damage."" Thus, the damage to the windows was related to the renovation, as is required for the exclusion to apply. Additionally, the parties' actions support our conclusion that the windows were part of the renovation. In their renovation plans, the 777 entities contemplated avoiding harm to the windows because the windows were not to be replaced or removed. The specifications of the contract between Viking and the 777 entities set forth Viking's and Armani's obligation to protect adjacent surfaces, which would include the windows, providing that Viking was to ""[p]rotect ... surrounding surfaces of building being restored ... from harm resulting from concrete restoration work.""","The specifications of the contract between Viking and the 777 entities set forth Viking's and Armani's obligation to protect adjacent surfaces, which would include the windows, providing that Viking was to ""[p]rotect ... surrounding surfaces of building being restored ... from harm resulting from concrete restoration work."" Although these specifications were drafted in contemplation of the use of a chemical cleaning media, Armani had a general obligation to avoid damage to adjacent surfaces, as set forth in the ""General Conditions"" provision of Viking's contract with the 777 entities, which provided: ""[Viking] ... shall provide reasonable protection to prevent damage, injury or loss to ... other property at the site or adjacent thereto, such as ... structures and utilities not designated for removal, relocation or replacement ...."" Because Armani's obligations in the performance of its renovation work included avoiding harm to the windows, structures not designated for removal, relocation or replacement, it is difficult to see how the windows and the damage to them is not connected or related to the renovation.","Meridian I also opined that even were the Type B handles described by the general scope language, they would be placed outside the Orders by the ""finished merchandise"" exclusion. Id. , 39 CIT at ----, 125 F.Supp.3d at 1315-16. This exclusion applies to ""finished merchandise containing aluminum extrusions as parts that are fully and permanently assembled and completed at the time of entry, such as finished windows with glass, doors with glass or vinyl, picture frames with glass pane and backing material, and solar panels."" AD Order , 76 Fed. Reg. at 30,651 ; CVD Order , 76 Fed. Reg. at 30,654. Concluding that ""the Department's determination ... is not based on reasonable interpretations of the general scope language and the finished merchandise exclusion,"" Meridian I remanded the Final Scope Ruling to Commerce for reconsideration. Meridian I , 39 CIT at ----, 125 F.Supp.3d at 1316, 1318.","In either event, in support of its position that the court should enforce the clause, Revelex points to a number of cases in which Florida courts have enforced some pretty broad exculpatory clauses without suggesting that they rendered illusory or otherwise invalidated (or even undermined) the contracts in which they appeared. See Br. of Appellant at 16-17 (citing, e.g. , L. Luria & Son, Inc. v. Honeywell, Inc ., 460 So. 2d 521, 522 (Fla. 4th Dist. Ct. App. 1984), Ace Formal Wear v. Baker Protective Serv ., 416 So. 2d 8, 9 (Fla. 3d Dist. Ct. App. 1982), and Windstar Club, Inc. v. WS Realty, Inc ., 886 So. 2d 986, 986-87 (Fla. 2d Dist. Ct. App. 2004) ). In Ace Formal Wear , for instance, a business brought breach-of-contract and negligence claims against the company that had installed its alarm system. After the system had been installed, burglars entered the customer's store through a window that hadn't been wired ""even though the wiring of that window was required by the [installation] contract."" 416 So. 2d at 9. In rejecting the customer's claims against the installer, the court pointed to and applied the following exculpatory clause, which was contained in the installation agreement:","To apply the economic loss rule, courts first determine what the product is at issue. Id. ""Only then do [courts] find out whether the injury is to the product itself (for which recovery is barred by the economic loss rule) or to property other than the defective product (for which products may recover in tort)."" Id. Notably, ""the economic loss rule does not necessarily bar recovery in tort for damage that a defective product (e.g., a window) causes to other portions of a larger product (e.g., a house) into which the former has been incorporated."" Id. ; see, e.g. , Stearman v. Centex Homes , 78 Cal. App. 4th 611, 615, 92 Cal.Rptr.2d 761 (2000) (affirming judgment making a builder strictly liable in tort for damages that a defective foundation caused to the interior and exterior of a home).","The Body Shops argue that the Insurance Companies have engaged in uniform tactics in that they require the Body Shops: to repair faulty parts rather than install replacement parts; to install used or recycled parts; and to offer discounts and concessions. Even if there were considerable uniformity with respect to the Insurance Companies' use of such methods, that would be suggestive of an agreement only if such usage would not plausibly arise from ""independent responses to common stimuli."" See Twombly, 550 U.S. at 556 n.4, 127 S.Ct. at 1965 n.4 (quoting Areeda and Hovenkamp ¶ 1425). All of these purported ""highly uniform"" tactics are easily explained by the most common of corporate stimuli: a desire to increase profits. And while some methods of increasing profits could be so idiosyncratic as to be unlikely to arise in the absence of an agreement, this is plainly not the case here. None of these tactics could even be fairly described as novel, let alone idiosyncratic, so as to support an inference of an agreement. It can hardly be denied that repairing (rather than replacing) damaged parts, installing recycled (rather than new) parts, and requiring discounts are among the most common and time-worn methods of increasing corporate profits in any industry, let alone in an industry where parts and labor reimbursements are the primary business expenditures, and where the parts are standardized and most repairs are ""ordinary and customary"" with industry wide databases that provide standardized estimates. In re Musical Instruments & Equip. Antitrust Litig., 798 F.3d 1186, 1189 (9th Cir. 2015) (""But plaintiffs' plus factors are no more consistent with an illegal agreement than with rational and competitive business strategies, independently adopted by firms acting within an interdependent market.""). Thus, even if we assume considerable uniformity among the Insurance Companies with respect to requiring where possible the repair of parts (rather than using new), requiring the use of recycled parts (rather than new), and requiring discounts, there would be no basis for inferring a prior agreement because each insurance company would rationally and independently want to do precisely that. That is, independent action is at least as plausible as concerted action pursuant to prior agreement; thus nothing ""tends to exclude the possibility of independent action,"" Twombly, 550 U.S.","In support of its holding, the Ehrenhaft Court reasoned as follows. First, plaintiff was a lay person and therefore justifiably relied on defendant's assurances that the room had been properly constructed and repaired. Id. at 1202. Second, the difficulty in identifying deficiencies in construction or design is exacerbated when those deficiencies - like the faulty plumbing, window structure, and electric wiring at issue - are ""latent in nature."" Id . Third, applying the discovery rule in construction disputes does not frustrate the policies underlying the statute of limitations where the injured party does not and, in the exercise of reasonable diligence, could not have known of her claim prior to discovering the defect. Id. at 1203. And fourth, in such a case, the interests of judicial economy favor applying the rule, because declining to do so would incentivize plaintiffs to file suit at the drop of a hat in order to preserve potential claims. Id.","The 777 entities also attempt to distinguish Sansone and Zachem by pointing out that those cases involved multiple, concurrent causes of the claimed loss, while the present case only involves one peril. Contrary to the 777 entities' argument, the fact that the loss in the present case was the result of a single, uncovered peril does not make the reasoning of Sansone and Zachem inapplicable. In both of those cases, the court made clear that an ensuing loss clause will only reinstate coverage when a hazard other than the excluded peril causes the loss. These cases clearly indicate that, as in the present case, where an excluded peril-the cleaning of the building's facade as part of the renovation-was the sole and direct cause of the damage to the windows, the ensuing loss clause does not reinstate coverage.","Both of these circumstances were present in Indalex . The court in Indalex found that the insurer had a duty to defend the insured contractor. In Indalex , a number of homeowners sued the defendant for ""windows and doors [that] were defectively designed or manufactured and resulted in water leakage that caused physical damage, such as mold and cracked walls, in addition to personal injury."" Id. at 419-20. The Indalex court stated that ""we have an off-the-shelf product that failed and allegedly caused property damage and personal injury ... Here, there are issues framed in terms of a bad product, which can be construed as an 'active malfunction,' and not merely bad workmanship."" Id. at 424. The court concluded that an active malfunction is fortuitous enough to constitute an ""occurrence,"" and that the complaint sufficiently alleged such a claim to potentially bring the suit within the scope of the policy's coverage. Id. at 425.","The relevant scope language includes ""aluminum extrusions which are shapes and forms, produced by an extrusion process, made from aluminum alloys having metallic elements corresponding to the alloy series designations published by the Aluminum Association commencing with the numbers 1, 3, and 6."" Antidumping Duty Order, 76 Fed. Reg. at 30,650. Further, ""[a]luminum extrusions are produced and imported in a wide variety of shapes and forms, ... [and] may also be fabricated, i.e., prepared for assembly[,] ... [which] include[s], but [is] not limited to, extrusions that are cut-to-length."" Id. ""Subject extrusions may be identified with reference to their end use .... Such goods are subject merchandise if they otherwise meet the scope definition, regardless of whether they are ready for use at the time of importation."" Id. at 30,651. The relevant language excludes from the scope ""finished merchandise containing aluminum extrusions as parts that are fully and permanently assembled and completed at the time of entry, such as finished windows with glass, doors with glass or vinyl, picture frames with glass pane and backing material, and solar panels."" Id. (emphasis added). The merchandise at issue consists of ""certain aluminum extrusions from [China] made of series 6xxx aluminum alloy which are cut-to-length and welded together in the form of a pallet, regardless of producer or exporter."" 6xxx Final Scope Ruling at 1.","The relevant legal principles and rules from the provided passages focus primarily on the classification of the windows in the context of property and security interests:

1. **Integration and Permanence**: The examples provided, such as the treatment of windows in renovation contexts and the general definition principles surrounding finished merchandise (Meridian passages), suggest that windows integrated into a property are often considered part of the real property, especially when they are designed to be a permanent fixture as part of the building. The notion of permanence and integration into the structure is a critical aspect of determining whether something is part of the property.

2. **Exclusions and Specific Contractual Terms**: Contracts that involve exclusions and specific directives to protect or maintain windows, as seen in the specific obligations under renovation contracts (facade cleaning example and contract specifications between Viking and the 777 entities), indicate that windows are typically considered integral parts of a building which are not intended for removal or separate treatment from the structure.

3. **Economic Loss Rule**: The economic loss rule passage highlights that integrated parts of a larger product (e.g., windows as part of a house) bring forth different liability considerations and recovery possibilities in tort versus contract law, reinforcing the concept that once installed, such elements are viewed as integral to the property.

These principles collectively suggest that when windows are integrated into a home, they are generally seen as fixtures rather than removable personal property, impacting priority in security interests and the rights to repossess.","§ 9-334. PRIORITY OF SECURITY INTERESTS IN FIXTURES AND CROPS. (a) [Security interest in fixtures under this article.] A security interest under this article may be created in goods that are fixtures or may continue in goods that become fixtures. A security interest does not exist under this article in ordinary building materials incorporated into an improvement on land. (b) [Security interest in fixtures under real-property law.] This article does not prevent creation of an encumbrance upon fixtures under real property law. (c) [General rule: subordination of security interest in fixtures.] In cases not governed by subsections (d) through (h), a security interest in fixtures is subordinate to a conflicting interest of an encumbrancer or owner of the related real property other than the debtor. (d) [Fixtures purchase-money priority.] Except as otherwise provided in subsection (h), a perfected security interest in fixtures has priority over a conflicting interest of an encumbrancer or owner of the real property if the debtor has an interest of record in or is in possession of the real property and: (1) the security interest is a purchase-money security interest; (2) the interest of the encumbrancer or owner arises before the goods become fixtures; and (3) the security interest is perfected by a fixture filing before the goods become fixtures or within 20 days thereafter. (e) [Priority of security interest in fixtures over interests in real property.] A perfected security interest in fixtures has priority over a conflicting interest of an encumbrancer or owner of the real property if: (1) the debtor has an interest of record in the real property or is in possession of the real property and the security interest: (A) is perfected by a fixture filing before the interest of the encumbrancer or owner is of record; and (B) has priority over any conflicting interest of a predecessor in title of the encumbrancer or owner; (2) before the goods become fixtures, the security interest is perfected by any method permitted by this article and the fixtures are readily removable: (A) factory or office machines; (B) equipment that is not primarily used or leased for use in the operation of the real property; or (C) replacements of domestic appliances that are consumer goods; (3) the conflicting interest is a lien on the real property obtained by legal or equitable proceedings after the security interest was perfected by any method permitted by this article; or (4) the security interest is: (A) created in a manufactured home in a manufactured-home transaction; and (B) perfected pursuant to a statute described in Section 9-311(a)(2). (f) [Priority based on consent, disclaimer, or right to remove.] A security interest in fixtures, whether or not perfected, has priority over a conflicting interest of an encumbrancer or owner of the real property if: (1) the encumbrancer or owner has, in an authenticated record, consented to the security interest or disclaimed an interest in the goods as fixtures; or (2) the debtor has a right to remove the goods as against the encumbrancer or owner. (g) [Continuation of paragraph (f)(2) priority.] The priority of the security interest under paragraph (f)(2) continues for a reasonable time if the debtor's right to remove the goods as against the encumbrancer or owner terminates. (h) [Priority of construction mortgage.] A mortgage is a construction mortgage to the extent that it secures an obligation incurred for the construction of an improvement on land, including the acquisition cost of the land, if a recorded record of the mortgage so indicates. Except as otherwise provided in subsections (e) and (f), a security interest in fixtures is subordinate to a construction mortgage if a record of the mortgage is recorded before the goods become fixtures and the goods become fixtures before the completion of the construction. A mortgage has this priority to the same extent as a construction mortgage to the extent that it is given to refinance a construction mortgage. (i) [Priority of security interest in crops.] A perfected security interest in crops growing on real property has priority over a conflicting interest of an encumbrancer or owner of the real property if the debtor has an interest of record in or is in possession of the real property. (j) [Subsection (i) prevails.] Subsection (i) prevails over any inconsistent provisions of the following statutes: [List here any statutes containing provisions inconsistent with subsection (i).]","§ 9-604. PROCEDURE IF SECURITY AGREEMENT COVERS REAL PROPERTY OR FIXTURES. (a) [Enforcement: personal and real property.] If a security agreement covers both personal and real property, a secured party may proceed: (1) under this part as to the personal property without prejudicing any rights with respect to the real property; or (2) as to both the personal property and the real property in accordance with the rights with respect to the real property, in which case the other provisions of this part do not apply. (b) [Enforcement: fixtures.] Subject to subsection (c), if a security agreement covers goods that are or become fixtures, a secured party may proceed: (1) under this part; or (2) in accordance with the rights with respect to real property, in which case the other provisions of this part do not apply. (c) [Removal of fixtures.] Subject to the other provisions of this part, if a secured party holding a security interest in fixtures has priority over all owners and encumbrancers of the real property, the secured party, after default, may remove the collateral from the real property. (d) [Injury caused by removal.] A secured party that removes collateral shall promptly reimburse any encumbrancer or owner of the real property, other than the debtor, for the cost of repair of any physical injury caused by the removal. The secured party need not reimburse the encumbrancer or owner for any diminution in value of the real property caused by the absence of the goods removed or by any necessity of replacing them. A person entitled to reimbursement may refuse permission to remove until the secured party gives adequate assurance for the performance of the obligation to reimburse.","§ 2A-309. LESSOR's AND LESSEE's RIGHTS WHEN GOODS BECOME FIXTURES. (1) In this section: (a) goodsare ""fixtures"" when they become so related to particular real estate that an interest in them arises under real estate law; (b) a ""fixture filing"" is the filing, in the office where a mortgage on the real estate would be filed or recorded , of a financing statement covering goods that are or are to become fixtures and conforming to the requirements of Section 9-402(5); (c) a lease is a ""purchase money lease"" unless the lessee has possession or use of the goods or the right to possession or use of the goods before the lease agreementis enforceable; (d) a mortgage is a ""construction mortgage"" to the extent it secures an obligation incurred for the construction of an improvement on land including the acquisition cost of the land, if the recorded writing so indicates; and (e) ""encumbrance"" includes real estate mortgages and other liens on real estate and all other rights in real estate that are not ownership interests. (2) Under this Article a lease may be of goodsthat are fixtures or may continue in goods that become fixtures, but no lease exists under this Article of ordinary building materials incorporated into an improvement on land. (3) This Article does not prevent creation of a leaseof fixtures pursuant to real estate law. (4) The perfected interest of a lessorof fixtures has priority over a conflicting interest of an encumbrancer or owner of the real estate if: (a) the lease is a purchase money lease, the conflicting interest of the encumbrancer or owner arises before the goods become fixtures, the interest of the lessor is perfected by a fixture filing before the goods become fixtures or within ten days thereafter, and the lesseehas an interest of record in the real estate or is in possession of the real estate; or (b) the interest of the lessor is perfected by a fixture filing before the interest of the encumbrancer or owner is of record, the lessor's interest has priority over any conflicting interest of a predecessor in title of the encumbrancer or owner, and the lessee has an interest of record in the real estate or is in possession of the real estate. (5) The interest of a lessorof fixtures, whether or not perfected, has priority over the conflicting interest of an encumbrancer or owner of the real estate if: (a) the fixtures are readily removable factory or office machines, readily removable equipment that is not primarily used or leased for use in the operation of the real estate, or readily removable replacements of domestic appliances that are goods subject to a consumer lease, and before the goods become fixtures the lease contractis enforceable; or (b) the conflicting interest is a lien on the real estate obtained by legal or equitable proceedings after the lease contractis enforceable; or (c) the encumbrancer or owner has consented in writing to the lease or has disclaimed an interest in the goodsas fixtures; or (d) the lessee has a right to remove the goods as against the encumbrancer or owner. If the lessee's right to remove terminates, the priority of the interest of the lessor continues for a reasonable time. (6) Notwithstanding subsection (4)(a) but otherwise subject to subsections (4) and (5), the interest of a lessor of fixtures, including the lessor's residual interest, is subordinate to the conflicting interest of an encumbrancer of the real estate under a construction mortgage recorded before the goodsbecome fixtures if the goods become fixtures before the completion of the construction. To the extent given to refinance a construction mortgage, the conflicting interest of an encumbrancer of the real estate under a mortgage has this priority to the same extent as the encumbrancer of the real estate under the construction mortgage. (7) In cases not within the preceding subsections, priority between the interest of a lessor of fixtures, including the lessor's residual interest, and the conflicting interest of an encumbrancer or owner of the real estate who is not the lesseeis determined by the priority rules governing conflicting interests in real estate. (8) If the interest of a lessor of fixtures, including the lessor's residual interest, has priority over all conflicting interests of all owners and encumbrancers of the real estate, the lessor or the lessee may (i) on default, expiration, termination, or cancellation of the lease agreement but subject to the lease agreement and this Article, or (ii) if necessary to enforce other rights and remedies of the lessor or lessee under this Article, remove the goodsfrom the real estate, free and clear of all conflicting interests of all owners and encumbrancers of the real estate, but the lessor or lessee must reimburse any encumbrancer or owner of the real estate who is not the lessee and who has not otherwise agreed for the cost of repair of any physical injury, but not for any diminution in value of the real estate caused by the absence of the goods removed or by any necessity of replacing them. A person entitled to reimbursement may refuse permission to remove until the party seeking removal gives adequate security for the performance of this obligation. (9) Even though the lease agreement does not create a security interest, the interest of a lessor of fixtures, including the lessor's residual interest, is perfected by filing a financing statement as a fixture filing for leased goods that are or are to become fixtures in accordance with the relevant provisions of the Article on Secured Transactions (Article 9).","§ 9-203. ATTACHMENT AND ENFORCEABILITY OF SECURITY INTEREST; PROCEEDS; SUPPORTING OBLIGATIONS; FORMAL REQUISITES. (a) [Attachment.] A security interest attaches to collateral when it becomes enforceable against the debtor with respect to the collateral, unless an agreement expressly postpones the time of attachment. (b) [Enforceability.] Except as otherwise provided in subsections (c) through (i), a security interest is enforceable against the debtor and third parties with respect to the collateral only if : (1) value has been given; (2) the debtor has rights in the collateral or the power to transfer rights in the collateral to a secured party; and (3) one of the following conditions is met: (A) the debtor has authenticated a security agreement that provides a description of the collateral and, if the security interest covers timber to be cut, a description of the land concerned; (B) the collateral is not a certificated security and is in the possession of the secured party under Section 9-313 pursuant to the debtor's security agreement; (C) the collateral is a certificated security in registered form and the security certificate has been delivered to the secured party under Section 8-301 pursuant to the debtor's security agreement; or (D) the collateral is deposit accounts, electronic chattel paper, investment property, or letter-of-credit rights, and the secured party has control under Section 9-104, 9-105, 9-106, or 9-107 pursuant to the debtor's security agreement. (c) [Other UCC provisions.] Subsection (b) is subject to Section 4-210 on the security interest of a collecting bank, Section 5-118 on the security interest of a letter-of-credit issuer or nominated person, Section 9-110 on a security interest arising under Article 2 or 2A, and Section 9-206 on security interests in investment property. (d) [When person becomes bound by another person's security agreement.] A person becomes bound as debtor by a security agreement entered into by another person if, by operation of law other than this article or by contract: (1) the security agreement becomes effective to create a security interest in the person's property; or (2) the person becomes generally obligated for the obligations of the other person, including the obligation secured under the security agreement, and acquires or succeeds to all or substantially all of the assets of the other person. (e) [Effect of new debtor becoming bound.] If a new debtor becomes bound as debtor by a security agreement entered into by another person: (1) the agreement satisfies subsection (b)(3) with respect to existing or after-acquired property of the new debtor to the extent the property is described in the agreement; and (2) another agreement is not necessary to make a security interest in the property enforceable. (f) [Proceeds and supporting obligations.] The attachment of a security interest in collateral gives the secured party the rights to proceeds provided by Section 9-315 and is also attachment of a security interest in a supporting obligation for the collateral. (g) [Lien securing right to payment.] The attachment of a security interest in a right to payment or performance secured by a security interest or other lien on personal or real property is also attachment of a security interest in the security interest, mortgage, or other lien. (h) [Security entitlement carried in securities account.] The attachment of a security interest in a securities account is also attachment of a security interest in the security entitlements carried in the securities account. (i) [Commodity contracts carried in commodity account.] The attachment of a security interest in a commodity account is also attachment of a security interest in the commodity contracts carried in the commodity account.","§ 9-109. SCOPE. (a) [General scope of article.] Except as otherwise provided in subsections (c) and (d), this article applies to: (1) a transaction, regardless of its form, that creates a security interest in personal property or fixtures by contract; (2) an agricultural lien; (3) a sale of accounts, chattel paper, payment intangibles, or promissory notes; (4) a consignment; (5) a security interest arising under Section 2-401, 2-505, 2-711(3), or 2A-508(5), as provided in Section 9-110; and (6) a security interest arising under Section 4-210 or 5-118. (b) [Security interest in secured obligation.] The application of this article to a security interest in a secured obligation is not affected by the fact that the obligation is itself secured by a transaction or interest to which this article does not apply. (c) [Extent to which article does not apply.] This article does not apply to the extent that: (1) a statute, regulation, or treaty of the United States preempts this article; (2) another statute of this State expressly governs the creation, perfection, priority, or enforcement of a security interest created by this State or a governmental unit of this State; (3) a statute of another State, a foreign country, or a governmental unit of another State or a foreign country, other than a statute generally applicable to security interests, expressly governs creation, perfection, priority, or enforcement of a security interest created by the State, country, or governmental unit; or (4) the rights of a transferee beneficiary or nominated person under a letter of credit are independent and superior under Section 5-114. (d) [Inapplicability of article.] This article does not apply to: (1) a landlord's lien, other than an agricultural lien; (2) a lien, other than an agricultural lien, given by statute or other rule of law for services or materials, but Section 9-333 applies with respect to priority of the lien; (3) an assignment of a claim for wages, salary, or other compensation of an employee; (4) a sale of accounts, chattel paper, payment intangibles, or promissory notes as part of a sale of the business out of which they arose; (5) an assignment of accounts, chattel paper, payment intangibles, or promissory notes which is for the purpose of collection only; (6) an assignment of a right to payment under a contract to an assignee that is also obligated to perform under the contract; (7) an assignment of a single account, payment intangible, or promissory note to an assignee in full or partial satisfaction of a preexisting indebtedness; (8) a transfer of an interest in or an assignment of a claim under a policy of insurance, other than an assignment by or to a health-care provider of a health-care-insurance receivable and any subsequent assignment of the right to payment, but Sections 9-315 and 9-322 apply with respect to proceeds and priorities in proceeds; (9) an assignment of a right represented by a judgment, other than a judgment taken on a right to payment that was collateral; (10) a right of recoupment or set-off, but: (A) Section 9-340 applies with respect to the effectiveness of rights of recoupment or set-off against deposit accounts; and (B) Section 9-404 applies with respect to defenses or claims of an account debtor; (11) the creation or transfer of an interest in or lien on real property, including a lease or rents thereunder, except to the extent that provision is made for: (A) liens on real property in Sections 9-203 and 9-308; (B) fixtures in Section 9-334; (C) fixture filings in Sections 9-501, 9-502, 9-512, 9-516, and 9-519; and (D) security agreements covering personal and real property in Section 9-604; (12) an assignment of a claim arising in tort, other than a commercial tort claim, but Sections 9-315 and 9-322 apply with respect to proceeds and priorities in proceeds; or (13) an assignment of a deposit account in a consumer transaction, but Sections 9-315 and 9-322 apply with respect to proceeds and priorities in proceeds.","§ 9-502. CONTENTS OF FINANCING STATEMENT; RECORD OF MORTGAGE AS FINANCING STATEMENT; TIME OF FILING FINANCING STATEMENT. (a) [Sufficiency of financing statement.] Subject to subsection (b), a financing statement is sufficient only if it: (1) provides the name of the debtor; (2) provides the name of the secured party or a representative of the secured party; and (3) indicates the collateral covered by the financing statement. (b) [Real-property-related financing statements.] Except as otherwise provided in Section 9-501(b), to be sufficient, a financing statement that covers as-extracted collateral or timber to be cut, or which is filed as a fixture filing and covers goods that are or are to become fixtures, must satisfy subsection (a) and also: (1) indicate that it covers this type of collateral; (2) indicate that it is to be filed [for record] in the real property records; (3) provide a description of the real property to which the collateral is related [sufficient to give constructive notice of a mortgage under the law of this State if the description were contained in a record of the mortgage of the real property]; and (4) if the debtor does not have an interest of record in the real property, provide the name of a record owner. (c) [Record of mortgage as financing statement.] A record of a mortgage is effective, from the date of recording, as a financing statement filed as a fixture filing or as a financing statement covering as-extracted collateral or timber to be cut only if: (1) the record indicates the goods or accounts that it covers; (2) the goods are or are to become fixtures related to the real property described in the record or the collateral is related to the real property described in the record and is as-extracted collateral or timber to be cut; (3) the record satisfies the requirements for a financing statement in this section, but (A) the record need not indicate that it is to be filed in the real property records; and (B) the record sufficiently provides the name of a debtor who is an individual if it provides the individual name of the debtor or the surname and first personal name of the debtor, even if the debtor is an individual to whom Section 9-503(a)(4) applies; and (4) the record is [duly] recorded. (d) [Filing before security agreement or attachment.] A financing statement may be filed before a security agreement is made or a security interest otherwise attaches. Legislative Note: Language in brackets is optional. Where the State has any special recording system for real property other than the usual grantor-grantee index (as, for instance, a tract system or a title registration or Torrens system) local adaptations of subsection (b) and Section 9-519(d) and (e) may be necessary. See, e.g., Mass. Gen. Laws Chapter 106, Section 9-410. A State should enact the 2010 amendments to Section 9-502 only if the State enacts Alternative A of the 2010 amendments to Section 9-503.","§ 9-102. DEFINITIONS AND INDEX OF DEFINITIONS. (a) [Article 9 definitions.] In this article: (1) ""Accession"" means goods that are physically united with other goods in such a manner that the identity of the original goods is not lost. (2) ""Account"", except as used in ""account for"", means a right to payment of a monetary obligation, whether or not earned by performance, (i) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (ii) for services rendered or to be rendered, (iii) for a policy of insurance issued or to be issued, (iv) for a secondary obligation incurred or to be incurred, (v) for energy provided or to be provided, (vi) for the use or hire of a vessel under a charter or other contract, (vii) arising out of the use of a credit or charge card or information contained on or for use with the card, or (viii) as winnings in a lottery or other game of chance operated or sponsored by a State, governmental unit of a State, or person licensed or authorized to operate the game by a State or governmental unit of a State. The term includes health-care-insurance receivables. The term does not include (i) rights to payment evidenced by chattel paper or an instrument, (ii) commercial tort claims, (iii) deposit accounts, (iv) investment property, (v) letter-of-credit rights or letters of credit, or (vi) rights to payment for money or funds advanced or sold, other than rights arising out of the use of a credit or charge card or information contained on or for use with the card. (3) ""Account debtor"" means a person obligated on an account, chattel paper, or general intangible. The term does not include persons obligated to pay a negotiable instrument, even if the instrument constitutes part of chattel paper. (4) ""Accounting"", except as used in ""accounting for"", means a record: (A) authenticated by a secured party; (B) indicating the aggregate unpaid secured obligations as of a date not more than 35 days earlier or 35 days later than the date of the record; and (C) identifying the components of the obligations in reasonable detail. (5) ""Agricultural lien"" means an interest in farm products: (A) which secures payment or performance of an obligation for: (i) goods or services furnished in connection with a debtor's farming operation; or (ii) rent on real property leased by a debtor in connection with its farming operation; (B) which is created by statute in favor of a person that: (i) in the ordinary course of its business furnished goods or services to a debtor in connection with a debtor's farming operation; or (ii) leased real property to a debtor in connection with the debtor's farming operation; and (C) whose effectiveness does not depend on the person's possession of the personal property. (6) ""As-extracted collateral"" means: (A) oil, gas, or other minerals that are subject to a security interest that: (i) is created by a debtor having an interest in the minerals before extraction; and (ii) attaches to the minerals as extracted; or (B) accounts arising out of the sale at the wellhead or minehead of oil, gas, or other minerals in which the debtor had an interest before extraction. (7) ""Authenticate"" means: (A) to sign; or (B) with present intent to adopt or accept a record, to attach to or logically associate with the record an electronic sound, symbol, or process. (8) ""Bank"" means an organization that is engaged in the business of banking. The term includes savings banks, savings and loan associations, credit unions, and trust companies. (9) ""Cash proceeds"" means proceeds that are money, checks, deposit accounts, or the like. (10) ""Certificate of title"" means a certificate of title with respect to which a statute provides for the security interest in question to be indicated on the certificate as a condition or result of the security interest's obtaining priority over the rights of a lien creditor with respect to the collateral. The term includes another record maintained as an alternative to a certificate of title by the governmental unit that issues certificates of title if a statute permits the security interest in question to be indicated on the record as a condition or result of the security interest’s obtaining priority over the rights of a lien creditor with respect to the collateral. (11) ""Chattel paper"" means a record or records that evidence both a monetary obligation and a security interest in specific goods, a security interest in specific goods and software used in the goods, a security interest in specific goods and license of software used in the goods, a lease of specific goods, or a lease of specific goods and license of software used in the goods. In this paragraph, ""monetary obligation"" means a monetary obligation secured by the goods or owed under a lease of the goods and includes a monetary obligation with respect to software used in the goods. The term does not include (i) charters or other contracts involving the use or hire of a vessel or (ii) records that evidence a right to payment arising out of the use of a credit or charge card or information contained on or for use with the card. If a transaction is evidenced by records that include an instrument or series of instruments, the group of records taken together constitutes chattel paper. (12) ""Collateral"" means the property subject to a security interest or agricultural lien. The term includes: (A) proceeds to which a security interest attaches; (B) accounts, chattel paper, payment intangibles, and promissory notes that have been sold; and (C) goods that are the subject of a consignment. (13) ""Commercial tort claim"" means a claim arising in tort with respect to which: (A) the claimant is an organization; or (B) the claimant is an individual and the claim: (i) arose in the course of the claimant's business or profession; and (ii) does not include damages arising out of personal injury to or the death of an individual. (14) ""Commodity account"" means an account maintained by a commodity intermediary in which a commodity contract is carried for a commodity customer. (15) ""Commodity contract"" means a commodity futures contract, an option on a commodity futures contract, a commodity option, or another contract if the contract or option is: (A) traded on or subject to the rules of a board of trade that has been designated as a contract market for such a contract pursuant to federal commodities laws; or (B) traded on a foreign commodity board of trade, exchange, or market, and is carried on the books of a commodity intermediary for a commodity customer. (16) ""Commodity customer"" means a person for which a commodity intermediary carries a commodity contract on its books. (17) ""Commodity intermediary"" means a person that: (A) is registered as a futures commission merchant under federal commodities law; or (B) in the ordinary course of its business provides clearance or settlement services for a board of trade that has been designated as a contract market pursuant to federal commodities law. (18) ""Communicate"" means: (A) to send a written or other tangible record; (B) to transmit a record by any means agreed upon by the persons sending and receiving the record; or (C) in the case of transmission of a record to or by a filing office, to transmit a record by any means prescribed by filing-office rule. (19) ""Consignee"" means a merchant to which goods are delivered in a consignment. (20) ""Consignment"" means a transaction, regardless of its form, in which a person delivers goods to a merchant for the purpose of sale and: (A) the merchant: (i) deals in goods of that kind under a name other than the name of the person making delivery; (ii) is not an auctioneer; and (iii) is not generally known by its creditors to be substantially engaged in selling the goods of others; (B) with respect to each delivery, the aggregate value of the goods is $1,000 or more at the time of delivery; (C) the goods are not consumer goods immediately before delivery; and (D) the transaction does not create a security interest that secures an obligation. (21) ""Consignor"" means a person that delivers goods to a consignee in a consignment. (22) ""Consumer debtor"" means a debtor in a consumer transaction. (23) ""Consumer goods"" means goods that are used or bought for use primarily for personal, family, or household purposes. (24) ""Consumer-goods transaction"" means a consumer transaction in which: (A) an individual incurs an obligation primarily for personal, family, or household purposes; and (B) a security interest in consumer goods secures the obligation. (25) ""Consumer obligor"" means an obligor who is an individual and who incurred the obligation as part of a transaction entered into primarily for personal, family, or household purposes. (26) ""Consumer transaction"" means a transaction in which (i) an individual incurs an obligation primarily for personal, family, or household purposes, (ii) a security interest secures the obligation, and (iii) the collateral is held or acquired primarily for personal, family, or household purposes. The term includes consumer-goods transactions. (27) ""Continuation statement"" means an amendment of a financing statement which: (A) identifies, by its file number, the initial financing statement to which it relates; and (B) indicates that it is a continuation statement for, or that it is filed to continue the effectiveness of, the identified financing statement. (28) ""Debtor"" means: (A) a person having an interest, other than a security interest or other lien, in the collateral, whether or not the person is an obligor; (B) a seller of accounts, chattel paper, payment intangibles, or promissory notes; or (C) a consignee. (29) ""Deposit account"" means a demand, time, savings, passbook, or similar account maintained with a bank. The term does not include investment property or accounts evidenced by an instrument. (30) ""Document"" means a document of title or a receipt of the type described in Section 7-201(2). (31) ""Electronic chattel paper"" means chattel paper evidenced by a record or records consisting of information stored in an electronic medium. (32) ""Encumbrance"" means a right, other than an ownership interest, in real property. The term includes mortgages and other liens on real property. (33) ""Equipment"" means goods other than inventory, farm products, or consumer goods. (34) ""Farm products"" means goods, other than standing timber, with respect to which the debtor is engaged in a farming operation and which are: (A) crops grown, growing, or to be grown, including: (i) crops produced on trees, vines, and bushes; and (ii) aquatic goods produced in aquacultural operations; (B) livestock, born or unborn, including aquatic goods produced in aquacultural operations; (C) supplies used or produced in a farming operation; or (D) products of crops or livestock in their unmanufactured states. (35) ""Farming operation"" means raising, cultivating, propagating, fattening, grazing, or any other farming, livestock, or aquacultural operation. (36) ""File number"" means the number assigned to an initial financing statement pursuant to Section 9-519(a). (37) ""Filing office"" means an office designated in Section 9-501 as the place to file a financing statement. (38) ""Filing-office rule"" means a rule adopted pursuant to Section 9-526. (39) ""Financing statement"" means a record or records composed of an initial financing statement and any filed record relating to the initial financing statement. (40) ""Fixture filing"" means the filing of a financing statement covering goods that are or are to become fixtures and satisfying Section 9-502(a) and (b). The term includes the filing of a financing statement covering goods of a transmitting utility which are or are to become fixtures. (41) ""Fixtures"" means goods that have become so related to particular real property that an interest in them arises under real property law. (42) ""General intangible"" means any personal property, including things in action, other than accounts, chattel paper, commercial tort claims, deposit accounts, documents, goods, instruments, investment property, letter-of-credit rights, letters of credit, money, and oil, gas, or other minerals before extraction. The term includes payment intangibles and software. (43) ""Good faith"" means honesty in fact and the observance of reasonable commercial standards of fair dealing. (44) ""Goods"" means all things that are movable when a security interest attaches. The term includes (i) fixtures, (ii) standing timber that is to be cut and removed under a conveyance or contract for sale, (iii) the unborn young of animals, (iv) crops grown, growing, or to be grown, even if the crops are produced on trees, vines, or bushes, and (v) manufactured homes. The term also includes a computer program embedded in goods and any supporting information provided in connection with a transaction relating to the program if (i) the program is associated with the goods in such a manner that it customarily is considered part of the goods, or (ii) by becoming the owner of the goods, a person acquires a right to use the program in connection with the goods. The term does not include a computer program embedded in goods that consist solely of the medium in which the program is embedded. The term also does not include accounts, chattel paper, commercial tort claims, deposit accounts, documents, general intangibles, instruments, investment property, letter-of-credit rights, letters of credit, money, or oil, gas, or other minerals before extraction. (45) ""Governmental unit"" means a subdivision, agency, department, county, parish, municipality, or other unit of the government of the United States, a State, or a foreign country. The term includes an organization having a separate corporate existence if the organization is eligible to issue debt on which interest is exempt from income taxation under the laws of the United States. (46) ""Health-care-insurance receivable"" means an interest in or claim under a policy of insurance which is a right to payment of a monetary obligation for health-care goods or services provided. (47) ""Instrument"" means a negotiable instrument or any other writing that evidences a right to the payment of a monetary obligation, is not itself a security agreement or lease, and is of a type that in ordinary course of business is transferred by delivery with any necessary indorsement or assignment. The term does not include (i) investment property, (ii) letters of credit, or (iii) writings that evidence a right to payment arising out of the use of a credit or charge card or information contained on or for use with the card. (48) ""Inventory"" means goods, other than farm products, which: (A) are leased by a person as lessor; (B) are held by a person for sale or lease or to be furnished under a contract of service; (C) are furnished by a person under a contract of service; or (D) consist of raw materials, work in process, or materials used or consumed in a business. (49) ""Investment property"" means a security, whether certificated or uncertificated, security entitlement, securities account, commodity contract, or commodity account. (50) ""Jurisdiction of organization"", with respect to a registered organization, means the jurisdiction under whose law the organization is formed or organized. (51) ""Letter-of-credit right"" means a right to payment or performance under a letter of credit, whether or not the beneficiary has demanded or is at the time entitled to demand payment or performance. The term does not include the right of a beneficiary to demand payment or performance under a letter of credit. (52) ""Lien creditor"" means: (A) a creditor that has acquired a lien on the property involved by attachment, levy, or the like; (B) an assignee for benefit of creditors from the time of assignment; (C) a trustee in bankruptcy from the date of the filing of the petition; or (D) a receiver in equity from the time of appointment. (53) ""Manufactured home"" means a structure, transportable in one or more sections, which, in the traveling mode, is eight body feet or more in width or 40 body feet or more in length, or, when erected on site, is 320 or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air-conditioning, and electrical systems contained therein. The term includes any structure that meets all of the requirements of this paragraph except the size requirements and with respect to which the manufacturer voluntarily files a certification required by the United States Secretary of Housing and Urban Development and complies with the standards established under Title 42 of the United States Code. (54) ""Manufactured-home transaction"" means a secured transaction: (A) that creates a purchase-money security interest in a manufactured home, other than a manufactured home held as inventory; or (B) in which a manufactured home, other than a manufactured home held as inventory, is the primary collateral. (55) ""Mortgage"" means a consensual interest in real property, including fixtures, which secures payment or performance of an obligation. (56) ""New debtor"" means a person that becomes bound as debtor under Section 9-203(d) by a security agreement previously entered into by another person. (57) ""New value"" means (i) money, (ii) money's worth in property, services, or new credit, or (iii) release by a transferee of an interest in property previously transferred to the transferee. The term does not include an obligation substituted for another obligation. (58) ""Noncash proceeds"" means proceeds other than cash proceeds. (59) ""Obligor"" means a person that, with respect to an obligation secured by a security interest in or an agricultural lien on the collateral, (i) owes payment or other performance of the obligation, (ii) has provided property other than the collateral to secure payment or other performance of the obligation, or (iii) is otherwise accountable in whole or in part for payment or other performance of the obligation. The term does not include issuers or nominated persons under a letter of credit. (60) ""Original debtor"", except as used in Section 9-310(c), means a person that, as debtor, entered into a security agreement to which a new debtor has become bound under Section 9-203(d). (61) ""Payment intangible"" means a general intangible under which the account debtor's principal obligation is a monetary obligation. (62) ""Person related to"", with respect to an individual, means: (A) the spouse of the individual; (B) a brother, brother-in-law, sister, or sister-in-law of the individual; (C) an ancestor or lineal descendant of the individual or the individual's spouse; or (D) any other relative, by blood or marriage, of the individual or the individual's spouse who shares the same home with the individual. (63) ""Person related to"", with respect to an organization, means: (A) a person directly or indirectly controlling, controlled by, or under common control with the organization; (B) an officer or director of, or a person performing similar functions with respect to, the organization; (C) an officer or director of, or a person performing similar functions with respect to, a person described in subparagraph (A); (D) the spouse of an individual described in subparagraph (A), (B), or (C); or (E) an individual who is related by blood or marriage to an individual described in subparagraph (A), (B), (C), or (D) and shares the same home with the individual. (64) ""Proceeds"", except as used in Section 9-609(b), means the following property: (A) whatever is acquired upon the sale, lease, license, exchange, or other disposition of collateral; (B) whatever is collected on, or distributed on account of, collateral; (C) rights arising out of collateral; (D) to the extent of the value of collateral, claims arising out of the loss, nonconformity, or interference with the use of, defects or infringement of rights in, or damage to, the collateral; or (E) to the extent of the value of collateral and to the extent payable to the debtor or the secured party, insurance payable by reason of the loss or nonconformity of, defects or infringement of rights in, or damage to, the collateral. (65) ""Promissory note"" means an instrument that evidences a promise to pay a monetary obligation, does not evidence an order to pay, and does not contain an acknowledgment by a bank that the bank has received for deposit a sum of money or funds. (66) ""Proposal"" means a record authenticated by a secured party which includes the terms on which the secured party is willing to accept collateral in full or partial satisfaction of the obligation it secures pursuant to Sections 9-620, 9-621, and 9-622. (67) ""Public-finance transaction"" means a secured transaction in connection with which: (A) debt securities are issued; (B) all or a portion of the securities issued have an initial stated maturity of at least 20 years; and (C) the debtor, obligor, secured party, account debtor or other person obligated on collateral, assignor or assignee of a secured obligation, or assignor or assignee of a security interest is a State or a governmental unit of a State. (68) ""Public organic record"" means a record that is available to the public for inspection and is: (A) a record consisting of the record initially filed with or issued by a State or the United States to form or organize an organization and any record filed with or issued by the State or the United States which amends or restates the initial record; (B) an organic record of a business trust consisting of the record initially filed with a State and any record filed with the State which amends or restates the initial record, if a statute of the State governing business trusts requires that the record be filed with the State; or (C) a record consisting of legislation enacted by the legislature of a State or the Congress of the United States which forms or organizes an organization, any record amending the legislation, and any record filed with or issued by the State or the United States which amends or restates the name of the organization. (69) ""Pursuant to commitment"", with respect to an advance made or other value given by a secured party, means pursuant to the secured party's obligation, whether or not a subsequent event of default or other event not within the secured party's control has relieved or may relieve the secured party from its obligation. (70) ""Record"", except as used in ""for record"", ""of record"", ""record or legal title"", and ""record owner"", means information that is inscribed on a tangible medium or which is stored in an electronic or other medium and is retrievable in perceivable form. (71) ""Registered organization"" means an organization organized solely under the law of a single State or the United States by the filing of a public organic record with, the issuance of a public organic record by, or the enactment of legislation by the State or the United States. The term includes a business trust that is formed or organized under the law of a single State if a statute of the State governing business trusts requires that the business trust’s organic record be filed with the State. (72) ""Secondary obligor"" means an obligor to the extent that: (A) the obligor's obligation is secondary; or (B) the obligor has a right of recourse with respect to an obligation secured by collateral against the debtor, another obligor, or property of either. (73) ""Secured party"" means: (A) a person in whose favor a security interest is created or provided for under a security agreement, whether or not any obligation to be secured is outstanding; (B) a person that holds an agricultural lien; (C) a consignor; (D) a person to which accounts, chattel paper, payment intangibles, or promissory notes have been sold; (E) a trustee, indenture trustee, agent, collateral agent, or other representative in whose favor a security interest or agricultural lien is created or provided for; or (F) a person that holds a security interest arising under Section 2-401, 2-505, 2-711(3), 2A-508(5), 4-210, or 5-118. (74) ""Security agreement"" means an agreement that creates or provides for a security interest. (75) ""Send"", in connection with a record or notification, means: (A) to deposit in the mail, deliver for transmission, or transmit by any other usual means of communication, with postage or cost of transmission provided for, addressed to any address reasonable under the circumstances; or (B) to cause the record or notification to be received within the time that it would have been received if properly sent under subparagraph (A). (76) ""Software"" means a computer program and any supporting information provided in connection with a transaction relating to the program. The term does not include a computer program that is included in the definition of goods. (77) ""State"" means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. (78) ""Supporting obligation"" means a letter-of-credit right or secondary obligation that supports the payment or performance of an account, chattel paper, a document, a general intangible, an instrument, or investment property. (79) ""Tangible chattel paper"" means chattel paper evidenced by a record or records consisting of information that is inscribed on a tangible medium. (80) ""Termination statement"" means an amendment of a financing statement which: (A) identifies, by its file number, the initial financing statement to which it relates; and (B) indicates either that it is a termination statement or that the identified financing statement is no longer effective. (81) ""Transmitting utility"" means a person primarily engaged in the business of: (A) operating a railroad, subway, street railway, or trolley bus; (B) transmitting communications electrically, electromagnetically, or by light; (C) transmitting goods by pipeline or sewer; or (D) transmitting or producing and transmitting electricity, steam, gas, or water. (b) [Definitions in other articles.] The following definitions in other articles apply to this article: ""Applicant"" Section 5-102. ""Beneficiary"" Section 5-102. ""Broker"" Section 8-102. ""Certificated security"" Section 8-102. ""Check"" Section 3-104. ""Clearing corporation"" Section 8-102. ""Contract for sale"" Section 2-106. ""Customer"" Section 4-104. ""Entitlement holder"" Section 8-102. ""Financial asset"" Section 8-102. ""Holder in due course"" Section 3-302. ""Issuer"" (with respect to a letter of credit or letter-of-credit right) Section 5-102. ""Issuer"" (with respect to a security) Section 8-201. ""Issuer"" (with respect to documents of title) Section 7-102. ""Lease"" Section 2A-103. ""Lease agreement"" Section 2A-103. ""Lease contract"" Section 2A-103. ""Leasehold interest"" Section 2A-103. ""Lessee"" Section 2A-103. ""Lessee in ordinary course of business"" Section 2A-103. ""Lessor"" Section 2A-103. ""Lessor's residual interest"" Section 2A-103. ""Letter of credit"" Section 5-102. ""Merchant"" Section 2-104. ""Negotiable instrument"" Section 3-104. ""Nominated person"" Section 5-102. ""Note"" Section 3-104. ""Proceeds of a letter of credit"" Section 5-114. ""Prove"" Section 3-103. ""Sale"" Section 2-106. ""Securities account"" Section 8-501. ""Securities intermediary"" Section 8-102. ""Security"" Section 8-102. ""Security certificate"" Section 8-102. ""Security entitlement"" Section 8-102. ""Uncertificated security"" Section 8-102. (c) [Article 1 definitions and principles.] Article 1 contains general definitions and principles of construction and interpretation applicable throughout this article.","§ 9-315. SECURED PARTY’S RIGHTS ON DISPOSITION OF COLLATERAL AND IN PROCEEDS. (a) [Disposition of collateral: continuation of security interest or agricultural lien; proceeds.] Except as otherwise provided in this article and in Section 2-403(2): (1) a security interest or agricultural lien continues in collateral notwithstanding sale, lease, license, exchange, or other disposition thereof unless the secured party authorized the disposition free of the security interest or agricultural lien; and (2) a security interest attaches to any identifiable proceeds of collateral. (b) [When commingled proceeds identifiable.] Proceeds that are commingled with other property are identifiable proceeds: (1) if the proceeds are goods, to the extent provided by Section 9-336; and (2) if the proceeds are not goods, to the extent that the secured party identifies the proceeds by a method of tracing, including application of equitable principles, that is permitted under law other than this article with respect to commingled property of the type involved. (c) [Perfection of security interest in proceeds.] A security interest in proceeds is a perfected security interest if the security interest in the original collateral was perfected. (d) [Continuation of perfection.] A perfected security interest in proceeds becomes unperfected on the 21st day after the security interest attaches to the proceeds unless: (1) the following conditions are satisfied: (A) a filed financing statement covers the original collateral; (B) the proceeds are collateral in which a security interest may be perfected by filing in the office in which the financing statement has been filed; and (C) the proceeds are not acquired with cash proceeds; (2) the proceeds are identifiable cash proceeds; or (3) the security interest in the proceeds is perfected other than under subsection (c) when the security interest attaches to the proceeds or within 20 days thereafter. (e) [When perfected security interest in proceeds becomes unperfected.] If a filed financing statement covers the original collateral, a security interest in proceeds which remains perfected under subsection (d)(1) becomes unperfected at the later of: (1) when the effectiveness of the filed financing statement lapses under Section 9-515 or is terminated under Section 9-513; or (2) the 21st day after the security interest attaches to the proceeds.","§ 9-311. PERFECTION OF SECURITY INTERESTS IN PROPERTY SUBJECT TO CERTAIN STATUTES, REGULATIONS, AND TREATIES. (a) [Security interest subject to other law.] Except as otherwise provided in subsection (d), the filing of a financing statement is not necessary or effective to perfect a security interest in property subject to: (1) a statute, regulation, or treaty of the United States whose requirements for a security interest's obtaining priority over the rights of a lien creditor with respect to the property preempt Section 9-310(a); (2) [list any statute covering automobiles, trailers, mobile homes, boats, farm tractors, or the like, which provides for a security interest to be indicated on a certificate of title as a condition or result of perfection, and any non-Uniform Commercial Code central filing statute]; or (3) a statute of another jurisdiction which provides for a security interest to be indicated on a certificate of title as a condition or result of the security interest's obtaining priority over the rights of a lien creditor with respect to the property. (b) [Compliance with other law.] Compliance with the requirements of a statute, regulation, or treaty described in subsection (a) for obtaining priority over the rights of a lien creditor is equivalent to the filing of a financing statement under this article. Except as otherwise provided in subsection (d) and Sections 9-313 and 9-316(d) and (e) for goods covered by a certificate of title, a security interest in property subject to a statute, regulation, or treaty described in subsection (a) may be perfected only by compliance with those requirements, and a security interest so perfected remains perfected notwithstanding a change in the use or transfer of possession of the collateral. (c) [Duration and renewal of perfection.] Except as otherwise provided in subsection (d) and Section 9-316(d) and (e), duration and renewal of perfection of a security interest perfected by compliance with the requirements prescribed by a statute, regulation, or treaty described in subsection (a) are governed by the statute, regulation, or treaty. In other respects, the security interest is subject to this article. (d) [Inapplicability to certain inventory.] During any period in which collateral subject to a statute specified in subsection (a)(2) is inventory held for sale or lease by a person or leased by that person as lessor and that person is in the business of selling goods of that kind, this section does not apply to a security interest in that collateral created by that person. Legislative Note: This Article contemplates that perfection of a security interest in goods covered by a certificate of title occurs upon receipt by appropriate State officials of a properly tendered application for a certificate of title on which the security interest is to be indicated, without a relation back to an earlier time. States whose certificate-of-title statutes provide for perfection at a different time or contain a relation-back provision should amend the statutes accordingly.","§ 9-324. PRIORITY OF PURCHASE-MONEY SECURITY INTERESTS. (a) [General rule: purchase-money priority.] Except as otherwise provided in subsection (g), a perfected purchase-money security interest in goods other than inventory or livestock has priority over a conflicting security interest in the same goods, and, except as otherwise provided in Section 9-327, a perfected security interest in its identifiable proceeds also has priority, if the purchase-money security interest is perfected when the debtor receives possession of the collateral or within 20 days thereafter. (b) [Inventory purchase-money priority.] Subject to subsection (c) and except as otherwise provided in subsection (g), a perfected purchase-money security interest in inventory has priority over a conflicting security interest in the same inventory, has priority over a conflicting security interest in chattel paper or an instrument constituting proceeds of the inventory and in proceeds of the chattel paper, if so provided in Section 9-330, and, except as otherwise provided in Section 9-327, also has priority in identifiable cash proceeds of the inventory to the extent the identifiable cash proceeds are received on or before the delivery of the inventory to a buyer, if: (1) the purchase-money security interest is perfected when the debtor receives possession of the inventory; (2) the purchase-money secured party sends an authenticated notification to the holder of the conflicting security interest; (3) the holder of the conflicting security interest receives the notification within five years before the debtor receives possession of the inventory; and (4) the notification states that the person sending the notification has or expects to acquire a purchase-money security interest in inventory of the debtor and describes the inventory. (c) [Holders of conflicting inventory security interests to be notified.] Subsections (b)(2) through (4) apply only if the holder of the conflicting security interest had filed a financing statement covering the same types of inventory: (1) if the purchase-money security interest is perfected by filing, before the date of the filing; or (2) if the purchase-money security interest is temporarily perfected without filing or possession under Section 9-312(f), before the beginning of the 20-day period thereunder. (d) [Livestock purchase-money priority.] Subject to subsection (e) and except as otherwise provided in subsection (g), a perfected purchase-money security interest in livestock that are farm products has priority over a conflicting security interest in the same livestock, and, except as otherwise provided in Section 9-327, a perfected security interest in their identifiable proceeds and identifiable products in their unmanufactured states also has priority, if: (1) the purchase-money security interest is perfected when the debtor receives possession of the livestock; (2) the purchase-money secured party sends an authenticated notification to the holder of the conflicting security interest; (3) the holder of the conflicting security interest receives the notification within six months before the debtor receives possession of the livestock; and (4) the notification states that the person sending the notification has or expects to acquire a purchase-money security interest in livestock of the debtor and describes the livestock. (e) [Holders of conflicting livestock security interests to be notified.] Subsections (d)(2) through (4) apply only if the holder of the conflicting security interest had filed a financing statement covering the same types of livestock: (1) if the purchase-money security interest is perfected by filing, before the date of the filing; or (2) if the purchase-money security interest is temporarily perfected without filing or possession under Section 9-312(f), before the beginning of the 20-day period thereunder. (f) [Software purchase-money priority.] Except as otherwise provided in subsection (g), a perfected purchase-money security interest in software has priority over a conflicting security interest in the same collateral, and, except as otherwise provided in Section 9-327, a perfected security interest in its identifiable proceeds also has priority, to the extent that the purchase-money security interest in the goods in which the software was acquired for use has priority in the goods and proceeds of the goods under this section. (g) [Conflicting purchase-money security interests.] If more than one security interest qualifies for priority in the same collateral under subsection (a), (b), (d), or (f): (1) a security interest securing an obligation incurred as all or part of the price of the collateral has priority over a security interest securing an obligation incurred for value given to enable the debtor to acquire rights in or the use of collateral; and (2) in all other cases, Section 9-322(a) applies to the qualifying security interests.","The provided legal passages describe the principles governing the priority of security interests in fixtures, which are integral in addressing the legal question. The key points are:

1. **Priority of Security Interests in Fixtures**:
   - Generally, a security interest in fixtures is subordinate to the interests of an encumbrancer or owner of the real property (§ 9-334(c)).
   - However, an exception exists for a perfected purchase-money security interest (PMSI) in fixtures. Such a PMSI has priority over a conflicting interest if it is perfected by a fixture filing before or within 20 days of the goods becoming fixtures (§ 9-334(d)).

2. **Special Considerations for Removable Fixtures**:
   - Certain readily removable fixtures (e.g., factory machines, non-operational equipment, domestic appliances) maintain special priority if the security interest is perfected before they become fixtures (§ 9-334(e)(2)).

3. **Rights upon Default**:
   - Secured parties with priority over all owners and encumbrancers may remove the fixtures upon default but must reimburse for any physical damage caused by the removal, not diminution in value (§ 9-604(c)-(d)).
  
4. **Definition and Filing Requirements for Fixture Filings**:
   - A fixture filing must include a description of the real property related to the fixtures and be filed where real property mortgages are recorded (§ 9-502).

5. **Scope and Enforceability**:
   - The scope of Article 9 covers security interests in goods that become fixtures, and the security interest must attach and be enforceable under certain conditions such as the debtor having rights in the collateral and the security agreement being authenticated (§ 9-109, § 9-203).

6. **General and Specific Priority Rules**:
   - While general rules dictate subordination of fixture-related security interests to pre-existing real property interests, PMSIs perfected within the stipulated timeframe can override these general rules (§ 9-324(a)).

These principles provide a framework for determining the priority of interests between Bank and Vend concerning the window inserts in Adam's house.","The passage indicates that tenants are considered necessary parties in a foreclosure action, referencing precedents that establish the importance of including all relevant parties in such proceedings (e.g., 6820 Ridge Realty v. Goldman, Polish Natl. Alliance of Brooklyn v. White Eagle Hall Co.). This principle highlights the need to address the rights and interests of all parties affected by a foreclosure, implying that any entity with a potential interest in the property, such as a holder of a security interest like Vend, must be considered in judicial actions involving the property. This background suggests the importance of assessing the specific legal standing and relevant interests of all parties involved in disputes over property and security interests."
mbe_845,,"Assume that Congress passed and the President signed the following statute: ""The appellate jurisdiction of the United States Supreme Court shall not extend to any case involving the constitutionality of any state statute limiting the circumstances in which a woman may obtain an abortion, or involving the constitutionality of this statute."" The strongest argument against the constitutionality of this statute is that",Congress may not exercise its authority over the appellate jurisdiction of the Supreme Court in a way that seriously interferes with the establishment of a supreme and uniform body of federal constitutional law.,Congress may only regulate the appellate jurisdiction of the Supreme Court over cases initially arising in federal courts.,the appellate jurisdiction of the Supreme Court may only be altered by constitutional amendment.,the statute violates the equal protection clause of the Fourteenth Amendment.,A,"The Constitution provides that the judicial power of the United States shall be vested in one Supreme Court and such inferior courts as the Congress shall from time to time ordain and establish. The same instrument, in the last clause of the same article, provides that in all cases other than those of original jurisdiction, ‚Äòthe Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make.‚Äô","In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court reaffirmed several core holdings from Roe v. Wade, including “a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State,” and “the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Casey recognizes the right of a woman to have an abortion before viability, but this is not an absolute right. The state may interfere with that right, provided that the interference is not undue, that is, that it does not create a substantial obstacle to a woman's decision to exercise her right. “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it.”","The burdens of a law are measured by their impacts on the women for whom they are a relevant restriction on the choice to seek a previability abortion. Hellerstedt , 136 S. Ct. at 2313 ; Casey , 505 U.S. at 895, 112 S.Ct. 2791. ""The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant."" Casey , 505 U.S. at 895, 112 S.Ct. 2791. If the impacts amount to a substantial obstacle to the abortion decision for a ""large fraction"" of that group, the burdens imposed are undue. Hellerstedt , 136 S. Ct. at 2313 ; Casey , 505 U.S. at 895, 112 S.Ct. 2791.","As stated above, to determine whether a law regulating abortion constitutes an undue burden on the right to terminate a pregnancy pre-viability, the court must balance the state's interests underlying a law against the obstacles imposed by the law to women's access to abortion. Where a regulation's burdens exceed its benefits, the regulation constitutes a substantial obstacle to a woman's choice-such a regulation cannot withstand constitutional challenge. See Whole Woman's Health v. Hellerstedt , --- U.S. ----, 136 S. Ct. 2292, 2309, 195 L.Ed.2d 665 (2016).","The burdens of a law are measured by their impacts on women for whom they are a relevant restriction on the choice to seek a previability abortion. Hellerstedt , 136 S. Ct. at 2313 ; Casey , 505 U.S. at 895, 112 S.Ct. 2791. ""The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant."" Casey , 505 U.S. at 895, 112 S.Ct. 2791. If the impacts amount to a substantial obstacle to the abortion decision for a ""large fraction"" of that group, the burdens imposed are undue. Hellerstedt , 136 S. Ct. at 2313 ; Casey , 505 U.S. at 895, 112 S.Ct. 2791. If a law imposes several incremental burdens, their impacts are assessed together. Planned Parenthood of Ind. & Ky., Inc. v. Comm'r of Ind. State Dep't of Health , 896 F.3d 809, 827 (7th Cir. 2018)","The strict scrutiny standard has been applied in cases where the government has imposed restrictions on abortions. Initially, the United States Supreme Court applied the strict scrutiny standard in Roe , 410 U.S. at 154-55, 93 S.Ct. 705, and its companion case, Doe v. Bolton , 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), to state statutes restricting access to medical procedures used to end a pregnancy.","What is the enumerated right at issue here? The guarantee of due process established by the Fourteenth Amendment. That provision, as the United States Supreme Court has come to construe it, prohibits a State from imposing an ""undue burden"" on a woman's access to an abortion before fetal viability. Casey , 505 U.S. at 877, 112 S.Ct. 2791 (plurality).","First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.",This same general principle applies equally to the specific context of abortion regulations. The Supreme Court has expressly recognized the Establishment Clause does not limit the State's authority to express a value judgment affirming the value of human life because:,"When an abortion regulation is enacted for the asserted purpose of protecting the health of women, an abortion provider seeking to strike down that law should not be able to rely on the constitutional rights of women. Like any other party unhappy with burdensome regulation, the provider should be limited to its own rights.",1.6 Territorial and Early State Statutes that Criminalized Abortion Cannot Be the Basis for Ignoring Constitutional Rights.,"The passages collectively emphasize several high-level legal principles concerning abortion laws, particularly those stemming from key Supreme Court decisions such as Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. 

1. **Undue Burden Standard**: The core principle established is that states cannot place undue burdens on a woman's right to choose to have an abortion before fetal viability. This standard is used to assess whether laws create substantial obstacles in the path of a woman seeking a previability abortion.

2. **Balancing State Interests**: While states have legitimate interests in protecting the health of the woman and the potential life of the fetus, these interests must be balanced against the burdens imposed by the regulations on the access to abortions. The benefits conferred by a regulation must not be outweighed by the burdens it imposes.

3. **Constitutional Inquiry Focus**: The relevant group for constitutional inquiry is not the general population but those directly affected by the regulation. If a significant number within that affected group face substantial obstacles, the law is likely unconstitutional.

4. **Judicial Scrutiny and Rights**: The Fourteenth Amendment's guarantee of due process, as interpreted by the Supreme Court, prohibits states from enacting laws that unduly burden a woman's right to terminate a pregnancy before viability. This underscores the importance of maintaining a supreme and uniform body of federal constitutional law regarding abortion rights.

5. **Historical Legal Context**: Historical statutes and territorial laws that criminalized abortion do not override these established constitutional rights.

These passages suggest that laws infringing upon the Supreme Court's ability to adjudicate constitutional issues regarding abortion could be seen as undermining the establishment of a consistent and supreme body of federal constitutional law.","There is a "" 'strong presumption' in favor of judicial review when [courts] interpret statutes."" Cuozzo Speed Techs., LLC v. Lee , --- U.S. ----, 136 S.Ct. 2131, 2140, 195 L.Ed.2d 423 (2016) (quoting Mach Mining, LLC v. EEOC , --- U.S. ----, 135 S.Ct. 1645, 1650-51, 191 L.Ed.2d 607 (2015) ). Furthermore, ""where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear."" Webster v. Doe , 486 U.S. 592, 603, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (citing Johnson v. Robison , 415 U.S. 361, 373-74, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974) ). Congress's intent must be clear because ""[i]t is presumed that Congress legislates with knowledge of [the Court's] well-settled presumption favoring interpretations that allow judicial review[.]"" McNary v. Haitian Refugee Center, Inc. , 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). The presumption in favor of judicial review may be overcome ""only upon a showing of 'clear and convincing evidence' of a contrary legislative intent."" Abbott Labs. v. Gardner , 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) (citations omitted). Such indications may be ""drawn from 'specific language,' 'specific legislative history,' and 'inferences of intent drawn from the statutory scheme as a whole,' that Congress intended to bar review."" Cuozzo , 136 S.Ct. at 2140 (quotation omitted). Interpreting a statutory provision to eliminate any judicial review of constitutional claims raises serious questions as to separation of powers as well as constitutional concerns. See Webster , 486 U.S. at 603, 108 S.Ct. 2047 (explaining that a ""heightened showing"" of Congressional intent is required ""in part to avoid the 'serious constitutional question' that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim""); see also Johnson , 415 U.S. at 366-67, 94 S.Ct. 1160 (holding that, before interpreting a statute to strip federal courts of jurisdiction over constitutional challenges, which would ""raise serious questions concerning the constitutionality"" of that statute, the court would ""first ascertain whether a construction of the statute is fairly possible by which the (constitutional) question(s) may be avoided"").","First, Defendants contend that 8 U.S.C. ¬ß¬ß 1252(a)(5), 1252(b)(9), and 1252(g) each deprive the Court of jurisdiction to enjoin the execution of Lin's removal order. A federal court must have subject-matter jurisdiction to decide a matter before it. Lightfoot v. Cendant Mortg. Corp. , --- U.S. ----, 137 S.Ct. 553, 562, 196 L.Ed.2d 493 (2017). If it does not, then the court must dismiss the case. Fed. R. Civ. P. 12(b)(1). Federal courts ""only have the power that is authorized by Article III of the Constitution and the statutes enacted by Congress."" Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ; see also Sheldon v. Sill , 49 U.S. 8 How. 441, 449, 12 L.Ed. 1147 (1850) (""And it would seem to follow, also, that, having a right to prescribe, Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies.""). But when interpreting a statute that a party asserts limits judicial review, courts must ""begin with the strong presumption that Congress intends judicial review of administrative action."" Berkley v. Mountain Valley Pipeline , 896 F.3d 624, 631 (4th Cir. 2018) (quoting Bowen v. Mich. Acad. Of Family Physicians , 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986) ). This presumption can be overcome ""only upon a showing of 'clear and convincing evidence' of a contrary legislative intent."" Abbott Labs. v. Gardner , 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Clear and convincing evidence of contrary intent can be established by ""specific language, specific legislative history, and inferences of intent drawn from the statutory scheme as a whole that Congress intended to bar review."" Cuozzo Speed Techs., LLC v. Lee , --- U.S. ----, 136 S.Ct. 2131, 2140, 195 L.Ed.2d 423 (2016) (quotations omitted).",IV. Controlling Rules of Constitutional Law Bar This Court from Enforcing an Ambiguous Statute That Implicates Free Speech Rights,"""Determining whether a statute violates the constitution is a question of law subject to unlimited review. Under our state's separation of powers doctrine, courts presume a statute is constitutional and resolve all doubts in favor of the statute's validity. A statute must clearly violate the constitution before it may be struck down.""",1.6 Territorial and Early State Statutes that Criminalized Abortion Cannot Be the Basis for Ignoring Constitutional Rights.,"I respectfully but strenuously dissent from the court's refusal to rehear en banc the panel's two-judge majority opinion upholding as constitutional the Louisiana Unsafe Abortion Protection Act (""Act 620""), which requires an abortion provider to have admitting privileges at a hospital within thirty miles of the site of an abortion. The panel majority opinion is in clear conflict with the Supreme Court's decision in Whole Woman's Health v. Hellerstedt , --- U.S. ----, 136 S.Ct. 2292, 195 L.Ed.2d 665 (2016) ("" WWH ""), holding unconstitutional an almost identical Texas admitting privileges requirement that served as a model for Act 620. The panel majority's attempt to distinguish WWH is meritless because it is based on an erroneous and distorted version of the undue burden test required by WWH and Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). The panel majority also improperly reverses the district court's well-supported factual findings regarding the devastating effects on women's rights to abortion that will result from Louisiana's admitting-privileges requirement, instead retrying those facts de novo at the appellate level. The panel majority refuses to acknowledge, much less discuss, these mistakes, even though the panel dissenter, Judge Higginbotham, cogently pointed them out. See June Medical , 905 F.3d 787, 816 (5th Cir. 2018) (Higginbotham, J., dissenting). A majority of the en banc court repeats this mistake, apparently content to rely on strength in numbers rather than sound legal principles in order to reach their desired result in this specific case. The important constitutional issues involved in this case deserve consideration by the full court more so than most others for which the court has granted en banc rehearing. It is disconcerting and telling that a panel and now the active circuit judges by slim majorities have refused to even acknowledge, much less openly discuss, the implications this case will have on our important doctrines of stare decisis and clear error review of trial court factual findings.",C. The Statute Was Not Intended To Exceed The Constitution.,"Consider first ""a familiar principle of statutory construction: the presumption favoring judicial review of administrative action."" Kucana v. Holder , 558 U.S. 233, 251, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). Under that ""well-settled"" and ""strong presumption,"" McNary v. Haitian Refugee Center, Inc. , 498 U.S. 479, 496, 498, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), when a statutory provision ""is reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review."" Kucana , 558 U.S. at 251, 130 S.Ct. 827 (quoting Gutierrez de Martinez v. Lamagno , 515 U.S. 417, 434, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995) ; internal quotation marks omitted); see McNary , 498 U.S. at 496, 111 S.Ct. 888 (""[G]iven [that] presumption ..., it is most unlikely that Congress intended to foreclose all forms of meaningful judicial review""). The presumption can only be overcome by ""clear and convincing evidence"" of congressional intent to preclude judicial review. Reno v. Catholic Social Services, Inc. , 509 U.S. 43, 64, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (quoting Abbott Laboratories v. Gardner , 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ; internal quotation marks omitted); see Cuozzo Speed Technologies, LLC v. Lee , 579 U. S. ----, ---- - ----, 136 S.Ct. 2131, 2140-2141, 195 L.Ed.2d 423 (2016).","This is why we have a state constitution with a bill of rights instead of unrestrained rule by whatever legislatively represented majority exists in the moment. See Madison, Federalist No. 51, The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments , in Hamilton, Jay, and Madison, The Federalist Papers 382 (The Floating Press ed. 2011) (1787) (""In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.""); Planned Parenthood , 915 N.W.2d at 244 (""[T]he state's capacity to legislate pursuant to its own moral scruples is necessarily curbed by the constitution. The state may pick a side, but in doing so, it may not trespass upon the fundamental rights of the people.""). And once we accept that there must be constraints on the government's power over its citizens, as we do in this country, courts have a singular role in defining contours to the constitutional protections that ensure statutory or regulatory restrictions on our rights are commensurate with what is at stake. ""[T]his court is the sole arbiter of the question whether an act of the legislature is invalid under the Constitution of Kansas."" Harris v. Shanahan , 192 Kan. 183, 207, 387 P.2d 771 (1963).","Article III of the Constitution vests ""[t]he judicial Power of the United States"" in the ""supreme Court"" and the lower federal courts established by Congress. ¬ß 1. ""[T]he judicial power is, fundamentally, the power to render judgments in individual cases"" or controversies that are properly before the court. Murphy v. National Collegiate Athletic Assn. , 584 U. S. ----, --- - ----, 138 S.Ct. 1461, 1485-1486, 200 L.Ed.2d 854 (2018) (THOMAS, J., concurring); see also Plaut v. Spendthrift Farm, Inc. , 514 U.S. 211, 219, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) ("" '[A] ""judicial Power"" is one to render dispositive judgments' ""); Baude, The Judgment Power, 96 Geo. L. J. 1807, 1815-1816 (2008). ""[T]he power exercised is that of ascertaining and declaring the law applicable to the controversy."" Massachusetts v. Mellon , 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). In the context of a constitutional challenge, ""[i]t amounts to little more than the negative power to disregard an unconstitutional enactment."" Ibid. ; see also Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 936 (2018). Thus, if a party argues that a statute and the Constitution conflict, ""then courts must resolve that dispute and, ... follow the higher law of the Constitution."" Murphy , 584 U. S., at ----, 138 S.Ct., at 1486 (THOMAS, J., concurring).","The primary high-level legal principle relevant here is the ""presumption in favor of judicial review,"" which the passages emphasize extensively. The principle establishes that courts should maintain the authority to review legislative and executive actions unless there is clear and convincing evidence that Congress intended to remove such judicial oversight. This presumption helps ensure that constitutional issues can be addressed by the judiciary, safeguarding the separation of powers and constitutional protections. Specifically, statutes intending to limit or eliminate judicial review, especially of constitutional claims, must clearly articulate this intent to avoid serious constitutional questions. This principle stems from multiple cases such as *Cuozzo Speed Techs., LLC v. Lee*, *Webster v. Doe*, and *Abbott Labs. v. Gardner*. Therefore, a statute that broadly removes the Supreme Court's appellate jurisdiction over significant constitutional issues would likely face substantial scrutiny under this presumption, necessitating a clear legislative intent to do so while being mindful of constitutional boundaries.","The passage explains that the Constitution vests judicial power in the Supreme Court and other courts established by Congress. It highlights that the Supreme Court has appellate jurisdiction in all cases not covered by original jurisdiction, but this appellate jurisdiction is subject to exceptions and regulations determined by Congress. This indicates that Congress has the authority to set limits on the Supreme Court’s appellate jurisdiction, but it does not address the broader implications of how such limitations may affect the uniformity and supremacy of federal constitutional law."
mbe_1042,,"Nora, executive director of an equal housing opportunity organization, was the leader of a sit-in at the offices of a real estate management company. The protest was designed to call attention to the company's racially discriminatory rental practices. When police demanded that Nora desist from trespassing on the company's property, she refused and was arrested. In Nora's trial for trespass, the prosecution peremptorily excused all nonwhites from the jury, arguing to the court that even though Nora was white, minority groups would automatically support Nora because of her fight against racism in housing accommodations. If Nora is convicted of trespass by an all-white jury and appeals, claiming a violation of her constitutional rights, the court should","affirm the conviction, because Nora was not a member of the class discriminated against.","affirm the conviction, because peremptory challenge of the nonwhites did not deny Nora the right to an impartial jury.","reverse the conviction, because racially based peremptory challenges violate equal protection of the law.","reverse the conviction, because Nora was denied the right to have her case heard by a fair cross section of the community.",C,"In this case, petitioner alleges race discrimination in the prosecution's use of peremptory challenges. Invoking the Equal Protection Clause and federal statutory law, and relying upon well-established principles of standing, we hold that a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same races.","Ms. Davila claims that her rights under the Equal Protection Clause of the Fourteenth Amendment were violated when Officer Bienemann selectively enforced the law or engaged in racial profiling by investigating her immigration status because of her protected characteristics-namely her Hispanic ethnicity and/or national origin. (Pl. Br. in Opp. at 1-2, ECF No. 248 ). Selective enforcement of facially neutral laws is a violation of the Equal Protection Clause. See Whren , 517 U.S. at 813, 116 S.Ct. 1769. In order to succeed on this claim Equal Protection Clause claim for selective enforcement, Ms. Davila must demonstrate that ""the challenged law enforcement practice had a discriminatory effect and was motivated by a discriminatory purpose."" Carrasca v. Pomeroy , 313 F.3d 828, 834 (3d Cir. 2002). To prove an officer acted with a discriminatory purpose, it must be demonstrated that he ""selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group."" Wayte v. United States , 470 U.S. 598, 610, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) (quoting Personnel Admin. of Mass. v. Feeney , 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) ). In order to demonstrate a discriminatory effect, Ms. Davila must ""show that she is a member of a protected class and that she was treated differently from similarly situated individuals in an unprotected class."" Bradley v. United States , 299 F.3d 197, 206 (3d Cir. 2002). This may be proven by ""naming similarly situated members of an unprotected class"" who were treated differently or ""by submitting statistical evidence of bias."" Id. It is undisputed that Ms. Davila, as a woman of Mexican descent, is a member of a ""protected class"" for these purposes. Carrasca , 313 F.3d at 834.","Judicial estoppel is an equitable doctrine designed to safeguard courts from misuse by litigants who attempt to change positions in the expediency of the moment. Relying on that doctrine to deny plaintiff Pena an opportunity to seek a remedy before a jury for disability discrimination, my colleagues misapply the Supreme Court's decision in Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999). Indeed, at the heart of Cleveland is a recognition that courts have been too quick to find a conflict between claims for Social Security Disability Insurance (""SSDI"") benefits and claims alleging discrimination under the Americans with Disabilities Act (""ADA""). The Court held that a plaintiff could pursue a reasonable accommodation claim despite an earlier SSDI application asserting total disability if she provides an ""explanation ... sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good-faith belief in, the earlier statement, the plaintiff could nonetheless 'perform the essential functions' of her job, with or without 'reasonable accommodation.' "" Id. at 807, 119 S.Ct. 1597. In this case, the explanation offered by Pena could warrant that conclusion by a reasonable jury. Therefore, I respectfully dissent.","Mark R. Hornak, Chief United States District Judge Angelica Davila (""Ms. Davila"") brought this lawsuit alleging violations of her rights under the Fourth and Fourteenth Amendments to the Constitution, made actionable by 42 U.S.C. § 1983. Ms. Davila alleges that Defendant Officer Andrew Bienemann (""Officer Bienemann"") unlawfully detained her during a traffic stop when he extended the length of the traffic stop, without reasonable suspicion or probable cause to do so, in order to investigate Ms. Davila's immigration status. Ms. Davila also alleges that this detention violated the Equal Protection Clause of the Fourteenth Amendment as being conducted because of Ms. Davila's Hispanic ethnicity and/or national origin. Ms. Davila further alleges that Officer Bienemann caused her to remain unlawfully jailed overnight after learning that she was legally residing in the United States by failing to notify the Allegheny County Jail (the ""ACJ"") of her lawful status.","Ms. Schuessler was in her office at OCA, during working hours, when she made the racist and homophobic comment. She was required, as an assistant circuit attorney, to act in the best interest of OCA and the citizens of the city of St. Louis. A prosecutor is not representing a client only when performing a specific act in a case. Ms. Schuessler's conduct, therefore, violated Rule 4-8.4(g). The violation was particularly egregious given the circumstances in which the racist and homophobic comment was made.","In Gladstone , a village and five of its residents (one black and four white) challenged racially discriminatory steering practices of real estate brokers. Although neither the village nor the white residents were subject to such discrimination, the Court held they had standing to sue. The village sustained injury as a result of reduced property values and a diminished tax base. Id. at 110-11, 99 S.Ct. 1601. The white residents sustained injury because they were deprived of the ""social and professional benefits"" of living in integrated neighborhoods and because of the diminution in the value of their homes. Id. at 115, 99 S.Ct. 1601. The Court determined such injuries were sufficient to confer standing under the FHA to both the village and the residents to contest the legality of the steering practices at issue. Id. ; see also Trafficante , 409 U.S. at 210, 93 S.Ct. 364 (white individual who contested landlord's racially discriminatory practices directed towards nonwhites suffered injury sufficient to confer standing due to loss of a racially integrated community).","Mensie alleges the City's denial of her rezoning request constituted racial discrimination in violation of her right to equal protection under the law. To establish a violation of the Equal Protection Clause under this theory, Mensie is required to show ""proof that a [racially] discriminatory purpose has been a motivating factor in the decision."" Village of Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 265-66, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). ""[D]etermining the existence of a discriminatory purpose 'demands a sensitive inquiry into such circumstantial and direct evidence as may be available.' "" Clients' Council v. Pierce , 711 F.2d 1406, 1409 (8th Cir. 1983) (quoting Rogers v. Lodge , 458 U.S. 613, 618, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982) ). This standard requires examining the ""totality of the relevant facts,"" id ., including racially discriminatory impact, historical background, the sequence of events leading up to the challenged decisions, and legislative or administrative history, especially ""contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports."" Village of Arlington Heights , 429 U.S. at 266-68, 97 S.Ct. 555.","Casillas's last line of defense is Havens Realty Corp. v. Coleman , 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), which she claims stands for the proposition that a plaintiff suffers a concrete ""informational injury"" any time a defendant violates a statutory disclosure requirement. There, the plaintiff, who was black, sued the defendant after it falsely told her that an apartment complex had no vacancies. The plaintiff had no intention of actually renting an apartment; she had requested the information because she suspected that the defendant was engaged in unlawful racial steering practices. Id. at 368-69, 102 S.Ct. 1114. The Court held that she had alleged a concrete injury under the Fair Housing Act, which ""conferred on all 'persons' a legal right to truthful information."" Id. at 373, 102 S.Ct. 1114. Casillas says that the Fair Debt Collection Practices Act has likewise conferred on all debtors a right to complete information about their statutory rights. And as in Havens Realty , Casillas says, it is enough for her to claim that she was deprived of the information to which she was legally entitled-even if she wouldn't use it.","Defendants' renewed motion to exclude the testimony of Plaintiffs' proposed expert Kelly Hang is granted in part and denied in part. Specifically, Hang may offer opinions regarding the compliance (vel non ) of Defendants' stationhouses with the 1991 and 2010 ADA accessibility standards-the principal subject of her reports and testimony. To the extent, however, that Hang has offered (or intends to offer) any opinion on whether the conditions of Defendants' stationhouses causes individuals with mobility disabilities to ""be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by [that] entity,"" 42 U.S.C. § 12132 -the ultimate liability issue in this case-that opinion must be excluded. The Court will address each of these holdings in turn.","Few principles of law are more firmly stitched into our constitutional fabric than the proposition that a State must not discriminate against a person because of his race or the race of his companions, or in any way act to compel or encourage racial segregation. Although this is a lawsuit against a private party, not the State or one of its officials, our cases make clear that petitioner will have made out a violation of her Fourteenth Amendment rights and will be entitled to relief under § 1983 if she can prove that a Kress employee, in the course of employment, and a Hattiesburg policeman somehow reached an understanding to deny Miss Adickes service in the Kress store, or to cause her subsequent arrest because she was a white person in the company of Negroes.","Finally, an equal protection approach may not have the same across-the-board application to all arbitrary pretextual searches. A pretextual search based on racial profiling might be subject to search and seizure attack, but an equally arbitrary pretextual search of a person with curly hair would not. Celebrated criminal justice cases-including those affording counsel to indigents in the Scottsboro case, requiring Miranda warnings to those who might otherwise face the third degree, and extending Fourth Amendment protections to the states to avoid the outrageous treatment of Dollree Mapp-were motivated, at least in part, to protect African-Americans from unfair overreach by law enforcement. Yet the principles announced in these cases apply to all and not just to some.","The key legal principles related to Nora's case focus on the constitutional protections against racially discriminatory practices in jury selection. Specifically, racially based peremptory challenges violate the Equal Protection Clause of the Fourteenth Amendment, which ensures that individuals are not subject to discrimination based on race. As discussed, even if an individual is not a member of the directly discriminated class, racially motivated actions impacting jury composition are prohibited and can compromise the fairness of judicial proceedings. Similarly, the idea of a fair cross-section of the community being necessary for jury impartiality stems from ensuring diversity and preventing racial exclusion in jury selection processes (Whren, Gladstone, Village of Arlington Heights). These principles underscore the importance of an impartial jury and adherence to equal protection standards, regardless of the specific racial composition or the person’s direct racial affiliation.","The Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States ""prohibits all forms of purposeful racial discrimination in selection of jurors."" Batson , 476 U.S. at 88, 106 S.Ct. 1712. Purposeful discrimination not only violates the rights of criminal defendants, it deprives prospective jurors of ""a significant opportunity to participate in civic life."" Powers v. Ohio , 499 U.S. 400, 409, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). ""[T]he selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial."" Taylor v. Louisiana , 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Therefore, the ""Constitution forbids striking even a single prospective juror for a discriminatory purpose."" Foster v. Chatman , --- U.S. ----, 136 S. Ct. 1737, 1747, 195 L.Ed.2d 1 (2016) (internal citation omitted). And ""[w]hen an uncorrected Batson violation is properly preserved for appeal by objection, the trial court's error in permitting a discriminatory strike cannot be harmless."" Wayne R. LaFave et al. 6 Criminal Procedure ¬ß 22.3(d) Peremptory Challenges (4th ed.) (Nov. 2018 update) (collecting cases) (footnotes omitted).","Shelley v. Kraemer (1948): Shelley v. Kraemer (1948) is a U.S. Supreme Court case that held that restrictive covenants in real property deeds which prohibited the sale of property to non-Caucasians unconstitutionally violate the equal protection provision of the Fourteenth Amendment. Find the full opinion here. In 1911, a majority of property owners in a neighborhood signed an agreement which created a condition precedent to the sale of property‚Äîi.e. a restrictive covenant‚Äîthat provided that ‚Äúno part of said property or any portion thereof shall be, for said term of Fifty-years, occupied by any person not of the Caucasian race. . .‚Äù In 1945, an African American family, the Shelleys, purchased one of the properties without knowledge of the restrictive covenant. The Kraemers, along with other white neighbors, sought to enforce the covenant and enjoin the Shelleys from taking possession of the property because of the restrictive covenant. The Missouri Supreme Court upheld the racially restrictive covenant and enjoined the Shelleys from taking ownership. The U.S. Supreme Court granted certiorari on the Shelleys‚Äô case to determine whether enforcement of racially restrictive covenants violated the Fourteenth Amendment, which stated, in part, that ‚Äúno state. . . [shall] deny to any person within its jurisdiction the equal protection of the laws.‚Äù The Supreme Court, in an opinion by Chief Justice Vinson, held that enforcement of such covenants violates the Equal Protection Clause of the Fourteenth Amendment. While obvious that, had a state created a law barring property ownership solely on the basis of race, that law would violate the Fourteenth Amendment, the issue here was that private owners created a covenant and the Fourteenth Amendment applies to state action. However, the Court reasoned that the Fourteenth Amendment applies to judicial enforcement of such covenants, as that is state action. Thus, the Court concluded that the state is taking action, through judicial enforcement of the racially restrictive covenants, and by doing so denies to African Americans solely on the basis of their race their constitutionally protected right to purchase property. The Court‚Äôs ruling in Shelley v. Kraemer had a significant impact on expanding African American rights in a time when they still suffered under Jim Crow laws. As the D.C. Policy Center explains, in the early 20th century, whites across the country created racially restrictive covenants to prevent blacks from living in traditionally white neighbors, thus segregating white and black neighborhoods. Shelley v. Kraemer not only eliminated this common method of promoting racial residential segregation, but also provided ammunition for future Supreme Court Justices looking to enforce the Equal Protection Clause. For example, in Edmonson v. Leesville Concrete Co., Justice Kennedy, in citing Shelley v. Kraemer alone, emphasized that ‚Äúthe injury caused by the discrimination is made more severe because the government permits it to occur within the courthouse itself.‚Äù Thus, while Shelley did not produce the immediate and sweeping change in jurisprudence the other important civil rights cases may have brought, such as Brown v. Board of Education, it was nevertheless an important precedent that courts could use in strengthening the Equal Protection Clause. [Last updated in April of 2021 by the Wex Definitions Team]",IV. Equal Protection Under the Fourteenth Amendment to the United States Constitution,"Faced with criminal charges, defendant, who is black, opted to exercise his state and federal constitutional rights to a jury trial. Among those summoned as potential jurors for defendant's case were three college students home for the summer. Each was passed for cause-that is, determined to be capable of deciding this case fairly and impartially in accordance with the law. Robert and Sarah, who are white, were empaneled as jurors. Fitsum, who is black-and the sole African-American in the jury pool that day-was not empaneled after the prosecutor exercised a peremptory strike against him and the trial court overruled defendant's objection under Batson v. Kentucky , 476 U.S. 79, 85, 106 S. Ct. 1712, 90 L.Ed. 2d 69 (1986). The question before U.S. is whether, under the ""comparative juror"" analysis adopted by the Supreme Court in Miller-El v. Dretke , 545 U.S. 231, 241, 125 S. Ct. 2317, 162 L.Ed. 2d 196 (2005), and applied in Snyder v. Louisiana , 552 U.S. 472, 128 S. Ct. 1203, 170 L.Ed. 2d 175 (2008), and Flowers v. Mississippi , --- U.S. ----, 139 S.Ct. 2228, 204 L.Ed. 2d 638 (2019), the court erred in overruling defendant's Batson objection. Although Snyder and Miller-El have both been on the books for more than a decade, this case appears to present the first opportunity for our court to consider a trial court's ruling on a Batson challenge under the comparative juror analysis. We conclude that, under that analysis, the trial court erred when it overruled defendant's Batson objection and, further, that the error is one that requires reversal. We therefore reverse and remand.","See U.S. Const. amend. XIV, ¬ß 1 (providing that no state shall ""deny to any person within its jurisdiction the equal protection of the laws"").","The Equal Protection Clause of the Fourteenth Amendment provides that no State shall ""deny to any person within its jurisdiction the equal protection of the laws."" U.S. Const. amend. XIV, ¬ß 1. It is ""essentially a direction that all persons similarly situated should be treated alike,"" A.M. ex rel. F.M. v. Holmes , 830 F.3d 1123, 1166 (10th Cir. 2016) (internal quotation marks omitted), and is intended ""to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents,"" Vill. of Willowbrook v. Olech , 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam) (internal quotation marks omitted). An equal protection claim may be asserted with respect to a group or a ""class of one."" Holmes , 830 F.3d at 1166. A plaintiff who ""alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment"" states a claim for violation of her right to equal protection. Olech , 528 U.S. at 564, 120 S.Ct. 1073.",VII. Deference to Prosecutorial Discretion is Unwarranted When Such Discretion Results in an Equal Protection Violation,"Mr. Sampedro responds that dismissal is nonetheless inappropriate because it is clearly established that officers cannot selectively enforce the law based on racial or ethnic considerations and therefore any reasonable officer would have known that he could not discriminate on the basis of race. Mr. Sampedro has failed to identify an applicable clearly established right, however. Mr. Sampedro is correct that racial profiling in certain settings has been held to violate the Fourteenth Amendment's equal protection clause. E.g., Batson v. Kentucky , 476 U.S. 79, 84, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (holding use of peremptory challenges to exclude jurors based on race violated equal protection clause). But, for purposes of qualified immunity, the inquiry is not whether such general principles of constitutional law might be applied to a particular circumstance, but whether such principles have been applied in the same or similar circumstances. See Allah, 876 F.3d at 59 (holding defendants were entitled to qualified immunity where relevant precedent did not clearly establish that a substantive due process would result from disputed conduct and plaintiff failed to ""identify any other case law that would have placed Defendants on notice that their conduct violated substantive due process""). As noted above, ""[r]ights must be clearly established in a 'particularized' sense, rather than at a high level of generality; and such rights are only clearly established if a court can 'identify a case where an officer acting under similar circumstances' was held to have acted unconstitutionally."" Grice , 873 F.3d at 166 (quoting White , 137 S. Ct. at 552 ). Mr. Sampedro has not identified any controlling authority that establishes that Trooper Kores could not lawfully arrest, investigate, and detain Mr. Sampedro as alleged without violating the Fourteenth Amendment.","Regents of the University of California v. Bakke (1978): Regents of the University of California v. Bakke is a 1978 Supreme Court case which held that a university‚Äôs admissions criteria which used race as a definite and exclusive basis for an admission decision violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. Find full opinion here. In the case, Bakke was a white male who applied to medical school at the University California at Davis. Although his admissions score was well above that of the average admittee and the school had open slots when he applied, his application was rejected because of the school‚Äôs racial quota system. Previously, the school implemented a quota system where white applicants could only compete for 84 out of 100 spots, and the remaining 16 were reserved for racial minorities. Bakke sued the school, arguing that the clear-cut racial quota system was unconstitutional and a violation of the Civil Rights Act of 1964. The Court held that these admission criteria violated the Equal Protection Clause and the Civil Rights Act of 1964. The Court blended the analysis of the two, finding that a violation of the Equal Protection Clause is discrimination, which the Civil Rights Act of 1964 prohibits. In this case, the court applied strict scrutiny, reasoning that the Equal Protection Clause requires that a government have a compelling interest with narrowly tailored means to blatantly base their actions on race alone, as was the case here. In so reasoning, the court extends the heightened scrutiny on race discrimination to all races and does not limit it to the protection of racial minorities. The medical school argued that their racial quota system served a compelling government interest by remedying the traditional underrepresentation of minorities in the medical profession and that the diversity in the classroom enhances the free exchange of ideas. The Court rejected the University‚Äôs arguments though, finding that there are other ways to achieve representation of traditionally underrepresented groups and classroom diversity without a blatant racial quota system. That is, the Court left the door open for race as a consideration among many in admissions. But the Court ruled that a quota system which excludes candidates because of their race alone is racial discrimination and that the University did not have a compelling reason with reasonably tailored means to overcome the constitutional standard of strict scrutiny. [Last updated in December of 2020 by the Wex Definitions Team]",Pro Se Assignment of Error 2: State's Peremptory Challenge Based on Race Violates the Constitutions of the United States and Louisiana,"The passages collectively emphasize the constitutional prohibition against racial discrimination in jury selection. The Equal Protection Clause of the Fourteenth Amendment and relevant case law, such as *Batson v. Kentucky* and *Foster v. Chatman*, assert that any purposeful exclusion of jurors based on race violates constitutional rights. This principle applies regardless of the defendant's race, underscoring that racial discrimination in jury selection infringes on both the rights of the defendant and the excluded jurors. Specifically, racially motivated peremptory challenges are impermissible, and errors arising from such practices are not considered harmless if preserved and appealed. Further, cases like *Shelley v. Kraemer* and an array of other precedents reinforce that the Equal Protection Clause aims to prevent both overt and subtle forms of racial discrimination by state actors, including those actions within the judicial process.","The passage informs us that under the Equal Protection Clause and federal statutory law, a criminal defendant has the standing to object to race-based exclusions of jurors through peremptory challenges, regardless of whether the defendant and the excluded jurors are of the same race. This principle, which does not require shared racial identity between the defendant and the excluded jurors, highlights the broader protection against racial discrimination in jury selection processes, ensuring that the constitutional right to equal protection is upheld."
mbe_1134,,"The King City zoning ordinance contains provisions restricting places of ""adult entertainment"" to two specified city blocks within the commercial center of the city. These provisions of the ordinance define ""adult entertainment"" as ""live or filmed nudity or sexual activity, real or simulated, of an indecent nature."" Sam proposes to operate an adult entertainment establishment outside the two- block area zoned for such establishments but within the commercial center of King City. When his application for permission to do so is rejected solely because it is inconsistent with provisions of the zoning ordinance, he sues the appropriate officials of King City, seeking to enjoin them from enforcing the adult entertainment provisions of the ordinance against him. He asserts that these provisions of the ordinance violate the First Amendment as made applicable to King City by the Fourteenth Amendment. In this case, the court hearing Sam's request for an injunction would probably hold that the adult entertainment provisions of the King City zoning ordinance are","constitutional, because they do not prohibit adult entertainment everywhere in King City, and the city has a substantial interest in keeping the major part of its commercial center free of uses it considers harmful to that area.","constitutional, because adult entertainment of the kind described in these provisions of the King City ordinance is not protected by the free speech guarantee of the First and Fourteenth Amendments.","unconstitutional, because they prohibit in the commercial area of the city adult entertainment that is not ""obscene"" within the meaning of the First and Fourteenth Amendments.","unconstitutional, because zoning ordinances that restrict freedom of speech may be justified only by a substantial interest in preserving the quality of a community's residential neighborhoods.",A,"A regulation is content neutral if it applies regardless of the speech's message. Content-neutral regulations are reviewed under intermediate scrutiny, which is easier to satisfy than strict scrutiny. Intermediate scrutiny allows reasonable and content-neutral time, place, or manner regulations (Lebron v. Nat'l R.R. Passenger Corp. (Amtrak), 69 F.3d 650, 655 (2d Cir. 1995)). Under intermediate scrutiny, the government must prove that: It has a significant governmental interest. The regulation is narrowly tailored to serve the significant interest. The tailoring does not need to be the least restrictive nor the least intrusive possible. The regulation leaves open ample alternatives for communication.","The Supreme Court has held that businesses selling material that is sexually explicit, although not necessarily obscene, may be regulated through land use ordinances designed to reduce the secondary effects of such businesses. Thus, a zoning ordinance prohibiting the location of adult bookstores and theaters in areas close to residential zones and restricting such theaters to a limited area of the city is permissible if it is designed to promote substantial government interests (e.g., property interests) and does not prohibit all such entertainment in the community. [City of Renton v. Playtime Theaters, Inc. (1986)]  The type of regulation in this question cannot be based simpl y on what residents find ""offensive""; only regulations that are based on substantial government interests and do not entirely prohibit the activity have been permitted by the Supreme Court.","Nude dancing and erotic performances are subject to Everett's pre-existing ordinances regulating ""public places of adult entertainment."" See EMC § 5.120. These regulations require adult entertainment businesses to obtain licenses and adhere to standards of conduct and operations, among other restrictions. See EMC §§ 5.120.030; 5.120.070. Everett's zoning ordinances also restrict the location of adult businesses, excluding them from operating within the downtown core. See id. §§ 19.05.090; 19.05 Table 5.2.","Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. Reed, 135 S.Ct. at 2227 ; see also Biondolillo, 164 N.H. at 374, 55 A.3d 1034. On the other hand, a law is a content-neutral speech regulation if it is ""justified without reference to the content of the regulated speech."" City of Renton v.Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (quotation and emphasis omitted). We agree with the trial court that the ordinance is not content-based. The ordinance is, on its face, a general prohibition on public nudity. See Pap's A.M., 529 U.S. at 290, 120 S.Ct. 1382 (concluding that ordinance banning public nudity was not related to the suppression of expression). As the United States District Court for the District of Massachusetts ruled regarding a National Park Service regulation prohibiting public nudity at the seashore, the ordinance is ""plainly not based upon either the content or subject matter of speech."" Craft, 683 F.Supp. at 293 (quotations omitted). There is nothing in the text of the ordinance itself that suggests ""that one group's viewpoint is to be preferred at the expense of others."" Id. (quotation omitted). It does not target nudity meant to advance women's rights or desexualize the female nipple. Rather, it prohibits all nudity, regardless of whether the nudity is accompanied by expressive activity. See Pap's A.M., 529 U.S. at 290, 120 S.Ct. 1382. In that sense, the ordinance merely regulates the manner in which activities may be carried out in that they cannot be carried out in the nude. We, therefore, conclude that the ordinance is content-neutral.","Regulating Mass Media In US West, Inc. v. United States, 48 F.3d 1092 (9th Cir. 1994), the Ninth Circuit Court of Appeals used intermediate scrutiny for a federal statute which prohibited telephone companies from providing video programming to subscribers. The US West court held here that in order to pass the first prong (important government interest prong) of intermediate scrutiny for a First Amendment issue, the government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” The US West court also held that for the government to pass the second prong (means test) of intermediate scrutiny for a First Amendment issue, the regulation must leave open ""ample alternative channels of communication."" Regulating Adult Entertainment In Am. Library Ass'n v. Reno, 33 F.3d 78 (D.C. Cir. 1994), the court applied intermediate scrutiny to a statute which required ""producers of materials depicting sexually explicit acts to maintain certain records documenting the names and ages of the persons portrayed and to attach statements to the materials indicating where the records are located."" The court found that if the regulation was related to the content of the speech of the individual materials, then strict scrutiny would apply. But because the government was regulating the broad category of adult videos without regard for the content of any particular video (i.e. ""content-neutral regulations""), the court found intermediate scrutiny to be the proper scrutiny here. In MD II Entertainment, Inc. v. Dallas, 28 F.3d 492 n. 21 (5th Cir. 1994), there was a city ordinance  which regulated topless bars and similar establishments by establishing zoning restrictions specific to these sort of adult entertainment establishments. The court held that because this statute ""govern[s] content-neutral regulations of commercial speech,"" intermediate scrutiny is the appropriate test to use. Regulating Highway Signs In Rappa v. New Caste County, 18 F. 3d 1043 (3d Cir.","In this case, Defendants purport that SOCE is regulated because the harm or potential harm is in the treatment itself, not because of the viewpoint or beliefs of the speaker. The ordinances do not regulate Plaintiffs' views about SOCE, homosexuality, or human attraction more generally. The ordinances also do not indicate a preference between heterosexual or homosexual individuals seeking to change their sexual orientation one way or another. See DE 1-4; DE 1-5; Hr'g. Tr. 26-29 (""So, what makes the viewpoint discriminatory is not that it prohibits equally change in either direction, from heterosexual to homosexual, that is not discriminatory."") (emphasis added); see also Hr'g. Tr. 119:2-8. The ordinances do regulate the practices of licensed medical providers in trying to change a child's sexual orientation. This practice is what is regulated, not any particular viewpoint on the subject. And, the ""proposition that a particular instance of speech can be proscribable on the basis of one feature (e.g., obscenity) but not on the basis of another (e.g., opposition to the city government) is commonplace."" R.A.V. , 505 U.S. at 385, 112 S.Ct. 2538. The rationale of preventing harm to minors by prohibiting a type of therapy could be construed as viewpoint neutral. If the Court concludes that SOCE may be regulated, then the perspective that SOCE is beneficial also may be regulated. To find otherwise would swallow the subdivision of viewpoint-discrimination from content-discrimination.","The purpose of the Act is to create and preserve ""a nondiscriminatory environment in California business establishments by 'banishing' or 'eradicating' arbitrary, invidious discrimination by such establishments."" ( Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 167, 59 Cal.Rptr.3d 142, 158 P.3d 718 ( Angelucci ), citing Isbister v. Boys' Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72, 75-76, 219 Cal.Rptr. 150, 707 P.2d 212.) ""The Act stands as a bulwark protecting each person's inherent right to 'full and equal' access to 'all business establishments.' ( § 51, subd. (b) ; see Isbister , supra , 40 Cal.3d at p. 75 [219 Cal.Rptr. 150, 707 P.2d 212].)"" ( Angelucci , at p. 167, 59 Cal.Rptr.3d 142, 158 P.3d 718.) In enforcing the Act, courts must consider its broad remedial purpose and overarching goal of deterring discriminatory practices by businesses. ( Ibid . ; see Isbister , at p. 75, 219 Cal.Rptr. 150, 707 P.2d 212.) We have consistently held that ""the Act must be construed liberally in order to carry out its purpose."" ( Angelucci , at p. 167, 59 Cal.Rptr.3d 142, 158 P.3d 718 ; see Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 28, 219 Cal.Rptr. 133, 707 P.2d 195 ( Koire ).)","As noted above, the State has authority to regulate and proscribe certain categories of speech because those categories are not protected by the First Amendment. See Stevens , 559 U.S. at 468-69, 130 S.Ct. 1577 ; Cohen , 403 U.S. at 20, 91 S.Ct. 1780. One of those categories is obscenity. See generally Miller , 413 U.S. at 36, 93 S.Ct. 2607 (holding obscenity is not protected by the First Amendment). The challenged statutory provisions are not susceptible of application to communicative conduct that is protected by the First Amendment, i.e., they do not implicate the free-speech guarantee, because by their plain text they are directed only at persons who, with intent to emotionally harm another, make obscene remarks. See TEX. PENAL CODE § 42.07(a)(1), (b)(3). There is nothing in the statutory provisions to suggest they are broad enough to suppress protected speech. See id. Nuncio's numerous hypotheticals suggesting applications of the statute that might reach protected speech are insufficient to establish overbreadth. See Johnson , 475 S.W.3d at 865 (holding challenged statute must prohibit substantial amount of protected expression and danger of unconstitutional application cannot be based on fanciful hypotheticals). Accordingly, we hold sections 42.07(a)(1) and (b)(3) are not constitutionally overbroad as they do not prohibit a substantial amount of protected speech, but merely prohibit communication of unprotected obscenities intended to harm the person to whom they are directed. A person whose conduct violates sections 42.07(a)(1) and (b)(3) is not engaging in a legitimate communication of ideas, opinions, or information, but has only the intent to inflict emotional distress for its own sake. See Scott , 322 S.W.3d at 670.","Based on the strong constitutional protections afforded Alaska citizens, we confirm that laws regulating the sexual content of messages, and thereby restricting one's right to liberty, are content-based and that we will apply strict scrutiny to determine their constitutionality. Applying the closing-hours restriction to adult cabarets is content-based; determining whether the restriction applies to a particular business requires considering whether it is an ""adult-oriented establishment,"" and then a business is ""burdened only if its expressive products have adult content."" We therefore apply strict scrutiny, and we will uphold the ordinance only if it is ""narrowly tailored to promote a compelling governmental interest"" and if it is ""the least restrictive means available to vindicate that interest.""","Accordingly, one who is subject to a law or ordinance requiring a license or permit to conduct expressive activity may facially challenge the statute or ordinance as vesting unbridled discretion in a government official without having applied for the license or permit. See City of Lakewood v. Plain Dealer Pub. Co. , 486 U.S. 750, 755-56, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) (""our cases have long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license""); Thornhill v. State of Alabama , 310 U.S. 88, 97, 60 S.Ct. 736, 84 L.Ed. 1093 (1940) (""Proof of an abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas.""); Gaudiya Vaishnava Soc. v. City & Cty. of San Francisco , 952 F.2d 1059, 1062 (9th Cir. 1990) (""Because this case involves a licensing ordinance which allegedly vests unbridled discretion in a government official over whether to deny or permit expressive activity, the nonprofits may challenge it facially without the necessity of first applying for, and being denied, a permit."").","The remaining question is whether the prohibition, as interpreted above, is an invalid regulation of commercial speech. Our focus is on whether there is an adequate justification for the prohibition. (See Gerawan Farming, Inc. v. Kawamura (2004) 33 Cal.4th 1, 21-24, 14 Cal.Rptr.3d 14, 90 P.3d 1179 ; City of Corona v. AMG Outdoor Advertising, Inc. (2016) 244 Cal.App.4th 291, 306, 197 Cal.Rptr.3d 563 ; Baba v. Board of Supervisors (2004) 124 Cal.App.4th 504, 518-520, 21 Cal.Rptr.3d 428.) Under the Central Hudson test, the prohibition is valid only if it is narrowly tailored to directly advance a substantial governmental interest. ( Central Hudson , supra , 447 U.S. at pp. 567-570, 100 S.Ct. 2343.) Generally, the test cannot be applied ""in the abstract,"" or on the basis of speculation or conjecture. ( Gerawan Farming, Inc. v. Kawamura , supra , at p. 22, 14 Cal.Rptr.3d 14, 90 P.3d 1179.) As our Supreme Court has explained, under the Central Hudson test, establishing the validity of a statute regulating protected commercial speech requires a factual showing regarding the Legislature's actual grounds for enacting the statute and its efficacy in achieving the legislative objective. ( Gerawan Farming, Inc. v. Kawamura , supra , 33 Cal.4th at pp. 21-24, 14 Cal.Rptr.3d 14, 90 P.3d 1179.) In addition to establishing that the statute addresses a governmental interest that is, "" 'in fact,' "" substantial, the record must disclose ""substantial evidence"" that the statute directly advances the interest in question and is narrowly tailored to achieve that objective. ( Id . at p. 23, 14 Cal.Rptr.3d 14, 90 P.3d 1179.)","The passages address the regulation of sexually explicit, non-obscene businesses under zoning ordinances. In ""City of Renton v. Playtime Theaters, Inc.,"" the Supreme Court upheld zoning that limited adult entertainment locations to mitigate secondary effects, not based on offensiveness, and affirmed that regulations must serve substantial government interests and leave alternative avenues open. Another passage clarifies that laws affecting speech based on content (e.g., sexual content) are subject to strict scrutiny unless content-neutral, in which case intermediate scrutiny applies, requiring substantial interest and ample alternative avenues (e.g., ""Am. Library Ass'n v. Reno""). Furthermore, some passages deal with the importance of how such regulations are justified, whether they are content-neutral, and the necessity for governments to present real, not speculative, harms that the regulations address. Additionally, other cases emphasize that broad discretionary powers in licensing that impact expressive activities are subject to facial challenges (e.g., ""City of Lakewood v. Plain Dealer Pub. Co.""). Finally, balancing the need for regulations against First Amendment protections often necessitates a tailored approach, ensuring that the regulatory means chosen are closely aligned with their intended substantial government interest (""Central Hudson test"").","The Free Speech Clause of the First Amendment commands that Congress, and the states, through the Fourteenth Amendment, ""shall make no law...abridging the freedom of speech."" U.S. Const. amend. I ; see, e.g. , Gitlow v. New York , 268 U.S. 652, 667, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (noting the First Amendment's application to the states). Nonetheless, it is also a ""long established"" and ""fundamental principle"" that ""the freedom of speech...does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language."" Gitlow , 268 U.S. at 667, 45 S.Ct. 625 (collecting cases). ""From 1791 to the present,...our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas."" R.A.V. v. City of St. Paul , 505 U.S. 377, 382-83, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Accordingly, First Amendment case law acknowledges the fundamental importance of freedom of speech on the one hand, but also recognizes that the freedom of speech must occasionally be restricted or limited to accommodate other important governmental interests on the other. See, e.g. , Holder v. Humanitarian Law Project , 561 U.S. 1, 28, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010). In grappling with how to strike this critical balance, the Supreme Court has recognized varying levels of scrutiny for analyzing laws that in some way curtail individuals' free speech rights. Laws that limit speech based on the content of that speech are generally subject to strict scrutiny - the most stringent form of review in the panoply of standards of statutory review. See, e.g. , Sorrell v. IMS Health Inc. , 564 U.S. 552, 565-67, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011). Content-neutral restrictions on speech are usually subjected to intermediate scrutiny. See Holder , 561 U.S. at 26-27, 130 S.Ct. 2705. Regulations that do not affect protected speech, or only incidentally do so, are subject to rational basis review. Determining whether the First Amendment applies to the ordinances and the appropriate level of review are critical, and potentially dispositive questions in this case.","""At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal."" Turner Broadcasting System, Inc. v. F.C.C. , 512 U.S. 622, 641, 114 S.Ct. 2445, 129 L.Ed. 2d 497 (1994). The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws ""abridging the freedom of speech."" U.S. Const., Amdt.1. The clause applies to a government vested with state authority, including a municipal government, and makes clear that no government ""has the power to restrict expression because of its message, its ideas, its subject matter, or its content."" Reed v. Town of Gilbert, Ariz. , --- U.S. ----, ----, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015) (citing Police Dept. of Chicago v. Mosley , 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1992) ). Laws that stifle speech on account of its message ""pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information."" Turner, supra . Content-based burdens on speech ""raise the specter that the government may effectively drive certain ideas or viewpoints from the marketplace."" Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd. , 502 U.S. 105, 116, 112 S.Ct. 501, 116 L.Ed. 2d 476 (1991). ""Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content."" Turner , supra . In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny. Clark v. Community for Creative Non-Violence , 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed. 2d 221 (1984).","A municipality may use zoning to limit the location of adult theaters and nude dancing establishments as long as the ordinance (i) is designed to promote important government interests (e.g., eliminate the secondary effects of such businesses-lowering of property values, increased traffic, etc.) and (ii) does not prohibit all such entertainment in the community. [See City of Renton v. Playtime Theatres, Inc. (1986)]","""Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed."" Reed, 135 S.Ct. at 2227 ; see also Biondolillo, 164 N.H. at 374, 55 A.3d 1034. On the other hand, a law is a content-neutral speech regulation if it is ""justified without reference to the content of the regulated speech."" City of Renton v.Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (quotation and emphasis omitted). We agree with the trial court that the ordinance is not content-based. The ordinance is, on its face, a general prohibition on public nudity. See Pap's A.M., 529 U.S. at 290, 120 S.Ct. 1382 (concluding that ordinance banning public nudity was not related to the suppression of expression). As the United States District Court for the District of Massachusetts ruled regarding a National Park Service regulation prohibiting public nudity at the seashore, the ordinance is ""plainly not based upon either the content or subject matter of speech."" Craft, 683 F.Supp. at 293 (quotations omitted). There is nothing in the text of the ordinance itself that suggests ""that one group's viewpoint is to be preferred at the expense of others."" Id. (quotation omitted). It does not target nudity meant to advance women's rights or desexualize the female nipple. Rather, it prohibits all nudity, regardless of whether the nudity is accompanied by expressive activity. See Pap's A.M., 529 U.S. at 290, 120 S.Ct. 1382. In that sense, the ordinance merely regulates the manner in which activities may be carried out in that they cannot be carried out in the nude. We, therefore, conclude that the ordinance is content-neutral.","Courts in our circuit have not yet ruled on this question. Reagan and Lamar offer one supporting authority, which is not binding on this Court. See Thomas v. Schroer , 248 F.Supp.3d 868, 880 (W.D. Tenn. 2017), reconsideration denied , No. 13-CV-02987-JPM-CGC, 2017 WL 6489144 (W.D. Tenn. Sept. 20, 2017) (""Even though the on-premises/off-premises distinction appears facially content neutral, it ultimately cannot be justified without reference to the content of the regulated speech and thus is a content-based regulation."") (cleaned up). Moreover, as the City notes, Thomas case concerned regulations that only restricted non-commercial speech. (City Trial Br., Dkt. 30, at 5). Outside of the Fifth Circuit, an overwhelming majority of courts have rejected the construction of Reed that Reagan and Lamar propose. See Act Now to Stop War and End Racism Coal. and Muslim Am. Soc'y Freedom Found. v. District of Columbia , 846 F.3d 391 (D.C. Cir. 2017), cert. denied sub nom., Muslim Am. Soc'y Freedom Found , --- U.S. ----, 138 S.Ct. 334, 199 L.Ed.2d 213 (2017) (""cursory examination"" does not render the statute facially content based); Contest Promotions, LLC v. City & Cty. of San Francisco , 874 F.3d 597, 601 (9th Cir. 2017) (""We have likewise rejected the notion that Reed altered Central Hudson 's longstanding intermediate scrutiny framework [for commercial speech]."") (citing Lone Star Sec. & Video, Inc. v. City of Los Angeles , 827 F.3d 1192, 1198 n.3 (9th Cir. 2016) ; Signs for Jesus v. Town of Pembroke , 230 F.Supp.3d 49, 60 (D.N.H. 2017) (holding that absent evidence ""suggesting that the Town applied the electronic sign ordinance unevenly in a way that suggests a content preference,"" restrictions on electronic signs were content-neutral and subject to intermediate scrutiny).",I. The standard of review and the law regarding the interpretation of ordinances and rules,"We review a district court's summary judgment ruling de novo, applying the same standard as the district court. iMatter Utah v. Njord , 774 F.3d 1258, 1262 (10th Cir. 2014). Summary judgment is appropriate ""if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."" Fed. R. Civ. P. 56(a). In reviewing a motion for summary judgment, ""we review the facts and all reasonable inferences those facts support, in the light most favorable to the nonmoving party."" iMatter , 774 F.3d at 1262 (citation omitted). Because this decision implicates First Amendment freedoms, we perform an independent examination of the whole record in order to ensure that the judgment protects the right of free expression. Faustin v. City and Cty. of Denver , 423 F.3d 1192, 1196 (10th Cir. 2005). Here, the City carries the burden to justify the Ordinance with uncontested facts. See iMatter , 774 F.3d at 1263.","Assuming that the ordinances regulate protected speech, the Court must next determine whether the ordinances are content-based or content-neutral. ""[C]ontent-based laws - those that target speech based on its communicative content - are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve a compelling government interest."" Reed v. Town of Gilbert , --- U.S. ----, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015) ; see also Wollschlaeger , 848 F.3d at 1308 (""Content-based restrictions on speech normally trigger strict scrutiny."") (collecting cases). In Reed , the plaintiffs challenged a municipal sign code, which regulated temporary directional signs differently from other kinds of signs. 135 S.Ct. 2218, 2227 (2015). The plaintiffs, members of a church group without a physical building, challenged the sign code because it interfered with their ability to post signs directing their parishioners to their weekly worship services. Id. at 2226. The Supreme Court subjected the sign code to strict scrutiny, because the sign code on its face regulated on the basis of content, and found that it failed to survive review. Id. at 2231. In contrast, intermediate scrutiny is applied to content-neutral regulations: a ""content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests."" Holder v. Humanitarian Law Project , 561 U.S. 1, 26-27, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010).","¬∂23 Kidd would then have needed to demonstrate what level of protection the speech at issue receives and how the statute burdens it. Kidd compounds this problem by citing cases applying various First Amendment frameworks without explaining how those distinctive legal principles might apply, either alternatively or in combination. Kidd's main contention appears to be that section 10-8-41.5 fails as a regulation of commercial speech, and in support she relies on Pacific Frontier v. Pleasant Grove City , which addresses a First Amendment challenge involving commercial speech. 414 F.3d 1221, 1231-35 (10th Cir. 2005). But Kidd also relies on United States v. O'Brien , which addresses regulation of conduct that implicates protected expression. 391 U.S. 367, 376-77, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). She also cites FW/PBS, Inc. v. City of Dallas , which addresses whether a regulation constitutes an unconstitutional prior restraint due to inadequate procedural safeguards. 493 U.S. 215, 223, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (plurality opinion). And while Kidd references other cases, she does little with them. For example, she cites, without meaningful analysis, Tollis Inc. v. San Bernardino County , which analyzes whether an ordinance may be upheld as a content-neutral time, place, and manner regulation and justified on the basis of secondary effects. 827 F.2d 1329, 1332-33 (9th Cir. 1987).",2. Content Based v. Content Neutral Regulations: Application of Strict Scrutiny,"The provided passages elucidate several important legal rules and principles relevant to the question of whether a zoning ordinance restricting ""adult entertainment"" to certain areas within King City is constitutional under the First Amendment. 

First, the Supreme Court has established that while the First Amendment's guarantee of free speech is fundamental, it is not absolute, allowing for certain restrictions, especially when important governmental interests are at stake (R.A.V. v. City of St. Paul, Holder v. Humanitarian Law Project).

Second, the level of judicial scrutiny applied to such restrictions depends on whether the regulation is content-based or content-neutral. Content-based regulations, which target speech based on its communicative content, are presumptively unconstitutional and subject to strict scrutiny, requiring the government to prove the regulation is narrowly tailored to serve a compelling interest (Reed v. Town of Gilbert). Conversely, content-neutral regulations, which are justified without reference to the content of speech, are subjected to intermediate scrutiny, and can be upheld if they advance important governmental interests unrelated to speech suppression and do not excessively burden speech (City of Renton v. Playtime Theatres, Inc., Holder v. Humanitarian Law Project).

Lastly, municipalities can use zoning ordinances to regulate the location of adult entertainment establishments to mitigate secondary effects like decreased property values and increased traffic, provided these regulations do not completely prohibit such establishments and are aimed at legitimate governmental interests (City of Renton v. Playtime Theatres, Inc.). This reflects an approach that often treats zoning regulations impacting adult entertainment as content-neutral if they serve broader community welfare goals rather than aiming to suppress the expression itself.

Collectively, these principles suggest that assessing the constitutionality of King City's ordinance will likely involve determining whether the restrictions are content-based or content-neutral and applying the appropriate level of judicial scrutiny to evaluate the regulation's alignment with First Amendment protections.","The passage discusses the legal principles for evaluating content-neutral regulations under intermediate scrutiny. Under this standard, a regulation will be upheld if it: (1) serves a significant governmental interest, (2) is narrowly tailored to achieve that interest, and (3) leaves open ample alternative channels for communication. Content-neutral time, place, or manner regulations do not need to be the least restrictive or least intrusive means of achieving the government’s goals, as long as they are not overly broad or too restrictive in achieving their purpose."