DOCSLIB.ORG

Judicial Ethics Advisory Committees by State Links to Web-Sites At

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Judicial Ethics Advisory Committees by State Links to Web-Sites At Judicial Ethics Advisory Committees by state Links to web-sites at https://www.ncsc.org/Topics/Judicial-Officers/Ethics/State-Links.aspx *Also has disciplinary responsibilities Committee establishment Types of opinions Composition Effect of opinions in discipline cases Alabama Judicial Inquiry 9 members: 1 appellate judge; 2 Admissible on behalf of judge to Commission* circuit judges; 1 district judge; 2 whom opinion is directed Commission Rule 17 members of the state bar; 3 non- lawyers Alaska Commission on Judicial Informal verbal guidance by 9 members: 3 judges; 3 lawyers; 3 Reliance on formal opinion is an Conduct* members and staff non-lawyers absolute defense to disciplinary Commission Rule 19 Written formal opinions by proceedings concerning the identical commission facts; if there are distinguishing facts, reliance is good faith defense. Informal opinions have no legal effect Arizona Judicial Ethics Advisory Informal opinions 9 members: 7 judges; 1 attorney; 1 Reliance on formal opinion may be Committee Formal opinions designee of administrative office of raised as defense Supreme Court Rule 82 the court Arkansas Judicial Ethics Advisory Oral advice 3 members: no more than 2 retired Advisory only; not binding on Committee Advisory opinion judges and 1 lawyer Commission or Supreme Court. Created by Judicial Discipline & Compliance by requesting individual Disability Commission with written opinion is evidence of good faith; compliance with oral opinion is not evidence of good faith California Supreme Court Advisory Formal written opinions 12 active or retired justices of a Advisory only Committee on the Code of Judicial Informal written opinions court of appeal or judges of superior Ethics Oral advice court, including at least 1 justice California Rules of Court, Rule from a court of appeal and 1 9.80(e)(1) subordinate judicial officer employed full-time by a superior court California Judges Association Ethics 15 judges Do not have the force of law Committee Colorado Judicial Ethics Advisory Advisory opinion 7 members: 4 judges; 1 lawyer; 1 Advisory only; not binding. Board Oral opinion law professor; 1 non-lawyer citizen Compliance with written opinion Chief Justice Directive 94-01 considered evidence of good faith. Compliance with oral advice not evidence of good faith Connecticut Committee on Judicial Formal or informal advisory 5 members: 4 judges or judge trial Advisory only; not binding Ethics opinions referees, 1 law profession Supreme court rule Emergency staff opinion Delaware Judicial Ethics Advisory 7 members: 1 judge from each of “A judge who has requested and Committee the courts of chancery, superior relied upon an opinion shall be Court on the Judiciary Rule 18 court, family court, court of common entitled to introduce that opinion as pleas, justice of the peace court evidence that conduct conforming to the opinion is prima facie permissible pursuant to the Delaware Judges’ Code of Judicial Conduct.” Florida Judicial Ethics Advisory Has election practices subcommittee 12 members: 3 district court of Not binding; Judicial Qualifications Committee appeals judges; 4 circuit court Commission may, in its discretion, Supreme Court order judges; 3 county court judges; 2 consider actions in accordance with public members an opinion as evidence of a good faith but no opinion issued to one judge shall be authority for conduct, or evidence of good faith, of another judge unless facts are identical Georgia Judicial Qualifications Informal opinion by staff 3 members: 1 judge; 1 non-lawyer; Informal opinion is not a defense to Commission* Formal opinion by hearing panel 1 lawyer a complaint or binding on Commission Rule 28, adopted by the investigative panel, hearing panel, or supreme court Supreme Court, but action in accordance with and in reasonable reliance on written informal advisory opinion considered in mitigation of discipline. Compliance with approved or modified formal advisory opinion considered evidence of good faith “to the extent that the underlying facts are identical.” Compliance with and reasonable reliance on formal advisory opinion “not reviewed by the Supreme Court shall be considered in mitigation of discipline.” Hawaii Commission on Judicial Informal opinion 7 members: 3 lawyers; 4 non- Complete defense for judge to Conduct* Formal opinion lawyers whom opinion was issued; mitigating Supreme Court Rule 8.15 factor for other judges who acted reasonably in reliance on opinion Illinois Judicial Ethics Committee Letter opinion 12 members: 6 judges from IJA; 3 Not binding State Bar Association, Chicago Bar Formal opinion lawyers from ISBA; 3 lawyers from Association, and Illinois Judges CBA Association Indiana Commission on Judicial 7 members: chief justice is chair ex Not binding on Supreme Court; Qualifications* officio; 3 lawyers; 3 non-lawyers Commission considers compliance Indiana constitution with opinion to be evidence of good faith Kansas Judicial Ethics Advisory No more than 3 retired justices or Not binding; request for and reliance Panel judges on advisory opinion shall be taken Supreme Court Rule 650 into account by Commission on Judicial Qualifications Ethics Committee of the Kentucky Informal opinion 5 members: 1 court of appeals Advisory only; Judicial Retirement Judiciary Formal opinion judge; 1 circuit court judge; 1 district and Removal Commission and Supreme Court Rule 4.310 court judge; 2 lawyers supreme court “shall consider reliance by a justice, judge, or trial commissioner upon the Ethics Committee opinion.” Louisiana Supreme Court 11 members: chief justice and 1 Not binding Committee on Judicial Ethics other member of supreme court; Addendum to code of judicial chair of conference of court of conduct adopted by supreme court appeals judges and 1 other court of appeals judge; president of district judges association and 2 other district judges; 1 juvenile or family court judge; president of city judges association; judicial administrator; president of bar association Maine Judicial Ethics Committee Formal opinions 7 members: currently, 1 district Advisory only; not binding on Administrative order of Supreme Informal opinions court judge; 1 superior court judge; judicial official who submitted Judicial Court 1 probate court judge; 1 lawyer from request, Committee on Judicial department of attorney general; 1 Responsibility or Disability, or any other lawyer; 2 non-lawyers court. Reliance on opinion by requesting judicial official given substantial weight in evaluating conduct in disciplinary proceedings. Reliance on and compliance with informal advisory opinion is factor to be taken into consideration in subsequent disciplinary proceedings. Formal opinions may be received in evidence and considered on interpretation of code of judicial conduct in any proceeding in Maine courts or before the Committee on Judicial Responsibility and Disability Maryland Judicial Ethics Committee Letter of advice 9 members: 1 judge of the court of Judge who requests and complies Rule 16-812.1 Written opinion special appeals; 2 circuit court with opinion or letter of advice “is judges; 2 judges of the district court; protected from a charge of violation 1 judge of an orphans’ court; 1 clerk of that ethics provision.” of a circuit court; 1 judicial appointee as defined in Rule 16-814; 1 non judge or other officer or employee of the judicial branch Massachusetts Committee on Informal opinions 5 members: at least 3 judges or Reliance on an informal opinion is Judicial Ethics Letter opinions former judges mitigating factor if judge did not Supreme Judicial Court Rule 3:11 Emergency letter opinions omit or misstate any material fact in request. “A judge shall not be disciplined for conduct undertaken in reasonable reliance on a Letter Opinion issued to that judge . .” Michigan State Bar Standing 10 members: members nominated Opinions “do not have the force and Committee on Judicial Ethics by judges association, probate effect of law and may not be relied judges association, district judges upon as an absolute defense to a association, referees association, charge of ethical misconduct.” and association of district court magistrates; 3 additional judge members, 1 commissioner liaison, 1 state bar liaison Minnesota Board on Judicial 10 members: 1 court of appeals Not binding; considered as having Standards* judge; 3 district court judges; 2 precedential weight Created by statute; rules lawyers; 4 non-lawyers promulgated by supreme court Missouri Commission on 6 members: 1 appellate court judge; Not binding; compliance is evidence Retirement, Removal & Discipline* 1 circuit court judge; 2 lawyers; 2 of good faith Created by constitution non- lawyers Nebraska Ethics Advisory 7 members: 2 district court judges; Not binding; judge who requested Committee 2 county court judges; 1 court of and relied on opinion may offer Appendix A to code of judicial appeals judge; 2 judges from courts opinion in disciplinary proceeding conduct other than supreme court Nevada Standing Committee on 30 members: 12 attorneys; 12 non- Not binding Judicial Ethics attorneys; 6 judges Supreme Court order New Hampshire Advisory 5 members: at least 3 judges or Not binding. Judicial Conduct Committee on Judicial Ethics retired judges Committee and Supreme Court, Supreme Court rule 38-A “may, in their discretion, consider compliance with an advisory opinion by the requesting individual to be evidence of a good faith effort to comply with the Code of Judicial Conduct.” New Jersey Advisory Committee on Informal opinion At least 9 members:
Load more

Recommended publications
  • JUDICIAL ETHICS ADVISORY OPINION SUMMARIES May-June
    JUDICIAL ETHICS ADVISORY OPINION SUMMARIES May-June 2019 Alaska Advisory Opinion 2019-1 http://www.acjc.alaska.gov/advopinions.html#2019-01 Disqualification: Former public defender A former public defender is disqualified from matters involving former clients for 2 years after becoming a judge unless the disqualification is waived but is not disqualified from cases against the state or a municipality or from cases in which the public defender’s office appears. Arizona Advisory Opinion 2019-1 http://www.azcourts.gov/Portals/137/ethics_opinions/2019/ethics%20opinion%2019-01.pdf Unsolicited donation for problem-solving court incentives A court may accept unsolicited monetary donations from a charitable organization to purchase incentives such as gift cards and bus passes for participants in problem-solving courts. Florida Advisory Opinion 2019-17 http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2019/2019- 17.html Disqualification: Parents’ former law firm, parents’ tenant A judge is not required to disqualify from cases involving her lawyer-parent’s former law firm. A judge is not automatically recused from cases involving a law firm that leases a building from her parent if her parent’s interest can be classified as de minimis. Florida Advisory Opinion 2019-18 http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2019/2019- 18.html Writing book A judge may write a book about family law courts and the mental health issues sometimes associated with them, specifically, the “warning signs” that judges and litigants should be concerned about, and may actively promote the book as long as he does not use the prestige of office to promote the book and the judge, his judicial assistant, and members of his family do not sell the book to any member of the Bar.
    [Show full text]
  • Published Ethics Advisory Opinions (Guide, Vol. 2B, Ch
    Guide to Judiciary Policy Vol. 2: Ethics and Judicial Conduct Pt. B: Ethics Advisory Opinions Ch. 2: Published Advisory Opinions § 210 Index § 220 Committee on Codes of Conduct Advisory Opinions No. 2: Service on Governing Boards of Nonprofit Organizations No. 3: Participation in a Seminar of General Character No. 7: Service as Faculty Member of the National College of State Trial Judges No. 9: Testifying as a Character Witness No. 11: Disqualification Where Long-Time Friend or Friend’s Law Firm Is Counsel No. 17: Acceptance of Hospitality and Travel Expense Reimbursements From Lawyers No. 19: Membership in a Political Club No. 20: Disqualification Based on Stockholdings by Household Family Member No. 24: Financial Settlement and Disqualification on Resignation From Law Firm No. 26: Disqualification Based on Holding Insurance Policy from Company that is a Party No. 27: Disqualification Based on Spouse’s Interest as Beneficiary of a Trust from which Defendant Leases Property No. 28: Service as Officer or Trustee of Hospital or Hospital Association No. 29: Service as President or Director of a Corporation Operating a Cooperative Apartment or Condominium No. 32: Limited Solicitation of Funds for the Boy Scouts of America No. 33: Service as a Co-trustee of a Pension Trust No. 34: Service as Officer or on Governing Board of Bar Association No. 35: Solicitation of Funds for Nonprofit Organizations, Including Listing of Judges on Solicitation Materials No. 36: Commenting on Legal Issues Arising before the Governing Board of a Private College or University No. 37: Service as Officer or Trustee of a Professional Organization Receiving Governmental or Private Grants or Operating Funds No.
    [Show full text]
  • Advisory Opinion of 25 February 2019 [Amended 4 March 2019 by Request]
    25 FÉVRIER 2019 AVIS CONSULTATIF EFFETS JURIDIQUES DE LA SÉPARATION DE L’ARCHIPEL DES CHAGOS DE MAURICE EN 1965 ___________ LEGAL CONSEQUENCES OF THE SEPARATION OF THE CHAGOS ARCHIPELAGO FROM MAURITIUS IN 1965 25 FEBRUARY 2019 ADVISORY OPINION TABLE OF CONTENTS Paragraphs CHRONOLOGY OF THE PROCEDURE 1-24 I. EVENTS LEADING TO THE ADOPTION OF THE REQUEST FOR THE ADVISORY OPINION 25-53 II. JURISDICTION AND DISCRETION 54-91 A. Jurisdiction 55-62 B. Discretion 63-68 1. Whether advisory proceedings are suitable for determination of complex and disputed factual issues 69-74 2. Whether the Court’s response would assist the General Assembly in the performance of its functions 75-78 3. Whether it would be appropriate for the Court to re-examine a question allegedly settled by the Arbitral Tribunal constituted under UNCLOS Annex VII in the Arbitration regarding the Chagos Marine Protected Area 79-82 4. Whether the questions asked relate to a pending dispute between two States, which have not consented to its settlement by the Court 83-91 III. THE FACTUAL CONTEXT OF THE SEPARATION OF THE CHAGOS ARCHIPELAGO FROM MAURITIUS 92-131 A. The discussions between the United Kingdom and the United States with respect to the Chagos Archipelago 94-97 B. The discussions between the Government of the United Kingdom and the representatives of the colony of Mauritius with respect to the Chagos Archipelago 98-112 C. The situation of the Chagossians 113-131 IV. THE QUESTIONS PUT TO THE COURT BY THE GENERAL ASSEMBLY 132-182 A. Whether the process of decolonization of Mauritius was lawfully completed having regard to international law (Question (a)) 139-174 1.
    [Show full text]
  • Advisory Opinion 2019-12
    OPINION 2019-12 Issued October 4, 2019 Appointment of a Magistrate as an Eldercare Coordinator SYLLABUS: A probate court magistrate may not be appointed as an eldercare coordinator in addition to his or her duties as a judicial officer. The dual appointment of a probate court magistrate as an eldercare coordinator interferes with the official duties of the position of magistrate and leads to frequent disqualification. The dual appointment of a probate court magistrate as an eldercare coordinator raises questions as to the magistrate’s impartiality. This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct in response to a prospective or hypothetical question regarding the application of ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional Conduct is solely responsible for the content of this advisory opinion, and the advice contained in this opinion does not reflect and should not be construed as reflecting the opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion should be directed to the staff of the Ohio Board of Professional Conduct. 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431 Telephone: 614.387.9370 Fax: 614.387.9379 www.bpc.ohio.gov HON. JOHN W. WISE RICHARD A. DOVE CHAIR DIRECTOR PATRICIA A. WISE D. ALLAN ASBURY VICE- CHAIR SENIOR COUNSEL KRISTI R. MCANAUL COUNSEL OPINION 2019-12 Issued October 4, 2019 Appointment of a Magistrate as an Eldercare Coordinator SYLLABUS: A probate court magistrate may not be appointed as an eldercare coordinator in addition to his or her duties as a judicial officer.
    [Show full text]
  • Advisory Opinions and the Influence of the Supreme Court Over American Policymaking
    ADVISORY OPINIONS AND THE INFLUENCE OF THE SUPREME COURT OVER AMERICAN POLICYMAKING The influence and prestige of the federal judiciary derive primarily from its exercise of judicial review. This power to strike down acts of the so-called political branches or of state governments as repugnant to the Constitution — like the federal judicial power more generally — is circumscribed by a number of self-imposed justiciability doctrines, among the oldest and most foundational of which is the bar on advi- sory opinions.1 In accord with that doctrine, the federal courts refuse to advise other government actors or private individuals on abstract legal questions; instead, they provide their views only in the course of deciding live cases or controversies.2 This means that the Supreme Court will not consider whether potential legislative or executive ac- tion violates the Constitution when such action is proposed or even when it is carried out, but only when it is challenged by an adversary party in a case meeting various doctrinal requirements. So, if a legisla- tive coalition wishes to enact a law that might plausibly be struck down — such as the 2010 healthcare legislation3 — it must form its own estimation of whether the proposal is constitutional4 but cannot know for certain how the Court will ultimately view the law. The bar on advisory opinions is typically justified by reference to the separation of powers and judicial restraint: when courts answer le- gal questions outside the legal dispute-resolution process, they reach beyond the judicial role and assume a quasi-legislative character. But ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 See Flast v.
    [Show full text]
  • Advisory Opinion 21-01 on the Public Readiness and Emergency Preparedness Act Scope of Preemption Provision January 8, 2021
    DEPARTMENT OF HEALTH & HUMAN SERVICES Office of the Secretary _____________________________________________________________________________________________________________________________________ The General Counsel Washington, D.C. 20201 ADVISORY OPINION 21-01 ON THE PUBLIC READINESS AND EMERGENCY PREPAREDNESS ACT SCOPE OF PREEMPTION PROVISION JANUARY 8, 2021 Following the issuance by the Secretary on December 3, 2020, of the Fourth Amendment to his Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, we have received questions as to whether the PREP Act applies where a covered person declined to use a covered countermeasure when it arguably ought to have been used.1 See 85 Fed. Reg. 79,190 (Dec. 9, 2020). These inquiries were stimulated, as we understand, by a spate of recent lawsuits, most involving nursing homes and other healthcare facilities, where patients or their estates allege that patients contracted COVID-19 because the facility, among other things, failed to provide its staff with personal protective equipment (“PPE”), failed to teach the staff how to properly use that equipment, or failed to ensure that its staff used the PPE that it had been given. This Advisory Opinion addresses these questions in the context of our administration of the PREP Act and the Secretary’s PREP Act Declaration, as amended. I. Analysis There has been a growing number of suits related to the use or non-use of covered countermeasures against COVID-19, including PPE. These cases tend to be filed in state courts alleging a variety of state law-based torts. In this “jurisprudential Kabuki dance” (Maine Public Utilities Com'n v. F.E.R.C., 625 F.3d 754, 758 (D.C.
    [Show full text]
  • Published United States Court of Appeals for The
    PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-1976 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2578, Plaintiffs – Appellants, v. OFFICE OF SPECIAL COUNSEL, Defendant – Appellee. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paula Xinis, District Judge. (8:19-cv-02322-PX) Argued: May 5, 2021 Decided: June 11, 2021 Before WILKINSON and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge. Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Rushing and Senior Judge Traxler joined. ARGUED: Kyle David Lyons-Burke, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellants. Jack E. Starcher, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Austin R. Evers, Melanie Sloan, John E. Bies, AMERICAN OVERSIGHT, Washington, D.C.; R. Stanton Jones, Daniel F. Jacobson, Jacob Zionce, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellants. Jeffrey Bossert Clark, Acting Assistant Attorney General, Michael S. Raab, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland; Susan K. Ullman, General Counsel, UNITED STATES OFFICE OF SPECIAL COUNSEL, Washington, D.C., for Appellee. 2 WILKINSON, Circuit Judge: The federal courts are courts of limited jurisdiction. No matter how interesting or elegant a party’s argument, the federal courts have no power to breathe life into disputes that come to us without it. The American Federation of Government Employees and the American Federation of Government Employees Local 2578 (jointly “AFGE”) claim that we must enjoin the enforcement of an agency’s advisory opinion, already since withdrawn, even before we have the slightest indication that any enforcement action has, or will ever, occur.
    [Show full text]
  • Advisory Opinion 20-05 on Implementing Allina December 3, 2020
    DEPARTMENT OF HEALTH & HUMAN SERVICES Office of the Secretary Office of the General Counsel Washington, D.C. 20201 ADVISORY OPINION 20-05 ON IMPLEMENTING ALLINA DECEMBER 3, 2020 The Office of the General Counsel (“OGC”) has received questions regarding the steps the Department of Health and Human Services (“HHS” or “the Department”) is taking to comply with the Supreme Court’s decision in Azar v. Allina Health Services, 139 S. Ct. 1804 (2019) that the Department must use notice-and-comment rulemaking in certain circumstances where the Administrative Procedure Act (“APA”) does not require such rulemaking. In this Advisory Opinion, OGC clarifies what the public can expect the Center for Medicare to do in order to satisfy Allina’s requirements regarding notice-and-comment rulemaking. This advisory opinion sets forth the current views of the Office of the General Counsel.1 It is not a final agency action or a final order. Nor does it bind HHS or the federal courts. It does not have the force or effect of law. I. Meaning of “Substantive Legal Standard” The Supreme Court in Allina held that under Social Security Act Section 1871, any Medicare issuance that establishes or changes a “substantive legal standard” governing the scope of benefits, payment for services, eligibility of individuals to receive benefits, or eligibility of individuals, entities, or organizations to furnish services, must go through notice-and-comment rulemaking. See also Social Security Act § 1871(a)(2). The Court declined to define the term “substantive legal standard,” other than to conclude it is not coterminous with the APA term “substantive rule.” See 139 S.
    [Show full text]
  • Using International Court of Justice Advisory Opinions to Adjudicate Secessionist Claims David Sloss Santa Clara University School of Law, [email protected]
    Santa Clara Law Santa Clara Law Digital Commons Faculty Publications Faculty Scholarship 2001 Using International Court of Justice Advisory Opinions to Adjudicate Secessionist Claims David Sloss Santa Clara University School of Law, [email protected] Follow this and additional works at: http://digitalcommons.law.scu.edu/facpubs Recommended Citation 42 Santa Clara L. Rev. 357 This Article is brought to you for free and open access by the Faculty Scholarship at Santa Clara Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. USING INTERNATIONAL COURT OF JUSTICE ADVISORY OPINIONS TO ADJUDICATE SECESSIONIST CLAIMS David Sloss* I. INTRODUCTION Hardly a week passes without news of deaths attribut- able to a violent conflict between a group demanding "auton- omy" or "independence" and a national government resisting those demands. For example, in a single week in March 2001, "[t]hree bombs in southern Russia, blamed on Chechen rebels, killed a score of civilians," and there were "three Pal- estinian bomb explosions in Israel, one of which killed two teenagers." The previous week, the "ETA, the Basque sepa- ratist terror group, killed the deputy mayor of a small town in the Basque region a week after setting off two car-bombs in Mediterranean resorts."' Clearly, the international commu- nity has a substantial interest in promoting peaceful resolu- tion of secessionist disputes. The International Court of Justice ("I.C.J.") advisory opinion procedure is a potentially useful mechanism, hereto- fore under-utilized, for the settlement of disputes between recognized states and secessionist groups within those states.' This is not to say that all or even most secessionist disputes can be solved by I.C.J.
    [Show full text]
  • In the Supreme Court of Texas
    IN THE SUPREME COURT OF TEXAS 444444444444 NO. 10-0121 444444444444 THE FINANCE COMMISSION OF TEXAS, THE CREDIT UNION COMMISSION OF TEXAS, AND TEXAS BANKERS ASSOCIATION, PETITIONERS, v. VALERIE NORWOOD, ELISE SHOWS, MARYANN ROBLES-VALDEZ, BOBBY MARTIN, PAMELA COOPER, AND CARLOS RIVAS, RESPONDENTS 4444444444444444444444444444444444444444444444444444 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS 4444444444444444444444444444444444444444444444444444 Argued September 13, 2011 JUSTICE JOHNSON, concurring in part and dissenting in part, and dissenting from the judgment. I dissent from parts III and IV of the Court’s opinion and from its judgment. Six homeowners filed suit in this case three weeks after the Finance and Credit Union Commissions’ interpretations of the home equity lending provisions in Section 50 became effective. The Homeowners challenged seventeen of the interpretations, but did not allege that any of the interpretations impacted a loan they applied for or considered applying for, or that they had been discouraged from applying for a loan by the interpretations. Nor does the record contain facts showing how any one, much less all, of the interpretations caused the Homeowners an actual, imminent, potential, or even hypothetical particularized injury. In post-submission briefing the Commissions argue that the matter should be remanded to the trial court to give the Homeowners the opportunity to replead so they can show jurisdictional facts. Instead of giving them that opportunity, the Court concludes the Homeowners have standing to challenge all the interpretations because their pleadings implicitly allege injury to their “prospective interest” in home equity loans. It then addresses the merits in what I view as an advisory opinion.
    [Show full text]
  • Citations to International Agreements, Cases and Arbitration Under
    CITATION TO INTERNATIONAL AGREEMENTS, CASES, AND ARBITRATIONS UNDER BLUEBOOK RULE 21 © 2017 The Writing Center at GULC. All Rights Reserved.∗ Citation to international sources,1 such as a treaty or a case decided by an international court, is governed by Rule 21 of the Bluebook. Rule 21 also covers citation to documents published by certain intergovernmental organizations, such as the United Nations, European Union, and World Trade Organization, but these rules are not discussed in this handout. Citation to foreign materials2 like statutes of another country is also not within the scope of this handout. This handout focuses on Rule 21.4 (Treaties and Other International Agreements), Rule 21.5 (International Law Cases), and Rule 21.6 (International Arbitrations and Claims Commissions), and provides guidance on how to format the citation for each source. I. TREATIES AND OTHER INTERNATIONAL AGREEMENTS Citation of a treaty or other international agreement generally includes the following information: (1) name of the agreement, (2) parties to the agreement, if applicable, (3) subdivisions, if citing only part of an agreement, (4) date of signing, and (5) the source(s) where the treaty or agreement can be found. The citation will be different based on whether the treaty or agreement is between two parties or multiple parties. In the following citation examples, the relevant portion discussed in each heading or paragraph is highlighted in blue for purposes of illustration only. Name of Agreement (Rule 21.4.1) The name of the treaty or agreement should include both its form and subject matter. The agreement could take various forms, such as an agreement, convention, memorandum, protocol, treaty, or understanding.
    [Show full text]
  • Does Equity Allow an ERISA Plan to Seek Reimbursement from a Participant’S General Assets?
    ERISA Does Equity Allow an ERISA Plan to Seek Reimbursement from a Participant’s General Assets? CASE AT A GLANCE Many employee benefit plans under the Employee Retirement Income Security Act of 1974 (ERISA) allow plan sponsors to recover plan assets wrongly in the hands of participants. Under ERISA, however, the judicial remedies available to a plan sponsor to enforce this right are limited to an injunction or “other appropriate equitable relief,” a phrase that typically does not include money damages. The Supreme Court must decide whether any equitable remedies allow a plan sponsor to recover from a participant’s general assets when the participant has dissipated the particular assets belonging to the plan. Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan Docket No. 14-723 Argument Date: November 9, 2015 From: The Eleventh Circuit by Daniel Thies Sidley Austin LLP, Chicago, IL ISSUE This case presents just such a question. The Employee Retirement Does a lawsuit by an ERISA fiduciary against a participant to recover Income Security Act of 1974 (ERISA) allows plan sponsors to an alleged overpayment by the plan seek “equitable relief” within sue participants to enforce a plan’s terms, but under a provision the meaning of ERISA Section 502(a)(3), 29 U.S.C. § 1132(a)(3), providing only the limited remedies of an injunction or “other if the fiduciary has not identified a particular fund that is in the appropriate equitable relief.” 29 U.S.C. § 1132(a)(3). This case participant’s possession and control at the time the fiduciary asserts tests whether allowing a plan to recover from a participant’s general its claim? assets when the particular funds being sought have been dissipated is “appropriate equitable relief.” FACTS ERISA governs the administration of employee benefit plans With the promulgation of the Federal Rules of Civil Procedure in by imposing on employers and other plan administrators a 1938, federal courts abolished the procedural distinction between fiduciary duty to act in the best interests of plan participants.
    [Show full text]