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November 17, 2011
MICHAEL HOFFLER, PETITIONER,v.NORMAN R. BEZIO, SUPERINTENDENT OF GREAT MEADOW CORRECTIONAL FACILITY, ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK, RESPONDENTS.
I. Background
A. State Court Proceedings
On March 19, 2004, a Rensselaer County Grand Jury charged petitioner Michael Hoffler with two counts of Murder in the First Degree, contrary to New York Penal Law ("Penal Law") §§ 125.27(1)(a)(v)(b) and 125.27(1)(a)(vi)(b) (witness-elimination murder; contract killing); Murder in the Second Degree, in violation of Penal Law § 125.25(1); and Second Degree Conspiracy, contrary to Penal Law § 105.15, arising out of the December 30, 2003 fatal shooting of Christopher Drabik, who at the time had been acting as a confidential informant for the Albany Police Department. See Indictment No. 04-1024.*fn1 Hoffler's jury trial on those charges commenced in May, 2005 before Rensselaer County Court Judge Patrick J. McGrath. At the conclusion of that trial, Hoffler was convicted of murder in the first degree (witness-elimination murder). See Transcript of Trial of Michael Hoffler (5/2005) (Dkt. Nos. 2-1 through 2-8) ("Trial Tr.") at pp. 1672-76. However, on appeal, the New York State, Supreme Court, Appellate Division, Third Department reversed Hoffler's conviction and ordered a new trial because the oath of truthfulness had not been administered to the jurors before they were questioned during voir dire. See People v. Hoffler, 53 A.D.3d 116 (3d Dept. 2008). In arriving at that decision, the Appellate Division initially rejected Hoffler's claims alleging pretrial error on the part of the Trial Court, including his claims that the grand jury evidence was legally insufficient, and that the County Court erred in denying Hoffler's pretrial motion which sought the suppression of certain evidence. Id. at 118-19. However, the Appellate Division reversed Hoffler's conviction because that court found that "the complete failure to provide the oath of truthfulness to the prospective jurors constituted a clear violation of the statutory mandate of [Criminal Procedure Law ("CPL")] § 270.15(1)(a), dissolved an important safeguard to [Hoffler's] constitutional right to a fair trial by an impartial jury and invalidated the entire trial." Id. at 124 (citations omitted). After arriving at that determination, that court did not address various other appellate claims asserted by Hoffler, including his arguments challenging the sufficiency of the evidence adduced at trial, the weight of that evidence, and Hoffler's claim of prosecutorial misconduct. Id. at 124. The New York Court of Appeals subsequently denied Hoffler permission to appeal the Appellate Division's order to the Court of Appeals. People v. Hoffler, 11 N.Y.3d 832 (2008).
On May 15, 2009, Hoffler moved to dismiss the Indictment pursuant to New York's Criminal Procedure Law ("CPL") §§ 210.20, 40.20(1), and 40.30(1)(b). See Dkt. Nos. 7 & 7-1 at FA-1153-1373 ("May, 2009 Motion to Dismiss"). In that application, Hoffler argued, inter alia, that because the Appellate Division had ordered a re-trial of Hoffler without first evaluating the legal sufficiency of the evidence adduced at his trial, his re-trial would violate his Double Jeopardy rights. May, 2009 Motion to Dismiss at Points I, V, VIII-XII.
In his Decision and Order dated September 16, 2009, Rensselaer County Court Judge Robert M. Jacon denied Hoffler's May, 2009 Motion to Dismiss in its entirety. See Decision and Order of Judge Jacon (09/16/09) (Dkt. No. 9-1 at pp. 40-48) ("September, 2009 Decision"). In that ruling, the court initially noted that the Appellate Division order which reversed Hoffler's conviction and ordered a new trial served to nullify Hoffler's first trial, and that therefore a re-trial under the Indictment was permissible. September, 2009 Decision at p. 5. In addressing Hoffler's argument that the Appellate Division was legally required to address his challenges to the sufficiency of evidence prior to ordering a re-trial, and that its failure to do so constituted a fundamental defect barring his re-trial, the court found that the Appellate Division's decision reversing Hoffler's conviction was in full compliance with CPL § 470.25,*fn2 and because the Appellate Division's decision was in compliance with that provision of the CPL, such court was not legally required to address Hoffler's evidence sufficiency claims. September, 2009 Decision at pp. 5-6. The court also rejected Hoffler's argument that by not ruling on the evidence sufficiency claims, the Appellate Division subjected Hoffler to a second trial in violation of Double Jeopardy principles by concluding that an "intermediate appellate court is not required to address all issues raised in an appeal" because under CPL § 470.15(1), "an intermediate appellate court may consider and determine any question of law or fact involving error or defect in the criminal court proceedings. The language does not say must address all questions of law or fact." September, 2009 Decision at p. 6 (emphasis in original).
Hoffler thereafter filed an application pursuant to Article 78 of New York's Civil Practice Law and Rules in the Third Department for an order from the Appellate Division barring his re-trial. See Dkt. No. 8 at FA-1410-35 ("Article 78 Petition"). The District Attorney opposed that application (Dkt. No. 10 at FA-1765-1805), and on April 1, 2010, the Third Department dismissed the petition and found that Hoffler had not demonstrated a clear legal right to an order prohibiting the prosecutor from re-trying Hoffler. Hoffler v. Jacon, 72 A.D.3d 1183 (3d Dep't 2010). Specifically, that Court noted that "under New York's statutory double jeopardy scheme, a person is considered to have been 'prosecuted' on an offense after the action proceeds to trial and the jury has been impaneled and sworn." Hoffler, 72 A.D.3d at 1184 (citing CPL § 40.30(1)(b)). Since, in reversing Hoffler's conviction, the Appellate Division concluded that the jury had never been properly sworn pursuant to CPL § 270.15(1)(a), which failure in turn "invalidated the entire trial" (Hoffler, 53 A.D.3d at 124), the Appellate Division found that his prior trial "was a nullity and petitioner was never 'prosecuted' under the indictment." Hoffler, 72 A.D.3d at 1185 (citations omitted). That court therefore concluded that Hoffler "was never placed in jeopardy even though the trial proceeded to its conclusion." Hoffler, 72 A.D.3d at 1185 (citations omitted). The Third Department found Hoffler's argument that his re-trial was barred because the Appellate Division failed to address his legal sufficiency and weight of the evidence claims in the context of his direct appeal to be "unavailing," Hoffler, 72 A.D.3d at 1185, and found no impediment to his retrial "[w]here, as here, a fundamental defect rendered the entire trial invalid." Id. On July 1, 2010, the New York Court of Appeals denied Hoffler's leave application "upon the ground that no substantial constitutional question is directly involved."
Hoffler v. Jacon, 15 N.Y.3d 768 (2010), reconsideration denied, Hoffler v. Jacon, 15 N.Y.3d 872 (2010).
B. This Action
With the assistance of counsel, Hoffler commenced this action on April 11, 2011 through the filing of a habeas corpus petition brought pursuant to 28 U.S.C. § 2241. See Dkt. No. 1 ("Petition"). In his pleading, Hoffler argues that: (1) by failing to resolve Hoffler's challenge to the sufficiency of the evidence prior to ordering his re-trial, the Appellate Division violated Hoffler's constitutional rights; (2) the evidence presented by the prosecution at Hoffler's trial was legally insufficient to establish his guilt; and (3) CPL § 40.30(3), which allows the re-prosecution of an individual under the same indictment if an earlier prosecution has been nullified by court order, is unconstitutional. See Petition; see also Petitioner's Memorandum of Law in Support of Petition (Dkt. No. 1-1) ("Supporting Mem.") at pp. 6-15. Petitioner has also requested that this Court conduct an evidentiary hearing to consider: (1) Rensselaer County's alleged policy of not administering the oath of truthfulness to prospective jurors; (2) the "lack of manifest necessity for not issuing an oath of truthfulness to prospective jurors;" and (3) whether Hoffler "received an implicit acquittal" during the internal appellate process relating to his appeal. Petition at ¶ 16.
On May 27, 2011, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed a response in opposition to Hoffler's petition. See Dkt. No. 15. Respondent attached to his response a memorandum of law in opposition to Hoffler's petition. See Dkt. No. 15-1 ("Resp. Mem.").
On August 5, 2011, Hoffler filed a reply memorandum in further support of his application for habeas relief. See Dkt. No. 19 ("Reply").
A. Propriety of Bringing Action Under 28 U.S.C. § 2241
Initially, this Court notes that Hoffler has entitled this matter as a "Pretrial Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241." Petition at p. 1. Hoffler asserts that this action is properly brought by him pursuant to § 2241, rather than § 2254, while respondent argues that this Court should consider the present proceeding as one being asserted by Hoffler pursuant to 28 U.S.C. § 2254. Compare Supporting Mem., Point I with Resp. Mem., Point I.*fn3 This issue is significant because the standard of review federal courts are to utilize in considering petitions brought under § 2254 is substantively different than the standard of review courts are to employ when considering petitions brought under § 2241. As the Second Circuit explained in Messiah v. Duncan, 435 F.3d 186 (2d Cir. 2006), "[t]he Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat 1214, modified the standard under which we review § 2254 petitions." Messiah, 435 F.3d at 196. The AEDPA mandates that federal district courts defer to factual findings and legal conclusions of the state court in actions brought under § 2254. Messiah, 435 F.3d at 197 (citations omitted). However, no such deference is to be afforded state court findings and conclusions by federal courts reviewing petitions brought under § 2241. Martinez v. Caldwell, 644 F.3d 238, 242 (5th Cir. 2011) ("§ 2254 is textually distinct from § 2241: one explicitly mandates deference, the other does not") (collecting cases).
The issue of whether a petition for a pretrial writ of habeas corpus is properly brought pursuant to § 2241 or § 2254 has never been squarely addressed by the Second Circuit, and indeed the Second Circuit appears to have considered such petitions under both such statutes. For example, in United States ex rel. Scranton v. State of New York, 402 F.Supp. 1010 (S.D.N.Y. 1975), a pretrial detainee filed a habeas corpus petition seeking an order from the district court prohibiting her re-trial on a murder charge on speedy trial grounds. Id. at 1011. In affirming the district court's order denying such petition, the Second Circuit "treat[ed] the petition before us as an application under the broader habeas statute, 28 U.S.C., Section 2241," United States ex rel. Scranton v. State of New York, 532 F.2d 292, 293 (2d Cir. 1976), and ultimately affirmed the district court's order denying that petition because the petitioner therein had failed to fully exhaust with the state courts the claims she asserted in her petition. Id. at 294-96. More recently, in Kruelski v. Connecticut Superior Court For Judicial Dist. of Danbury, 316 F.3d 103 (2d Cir. 2003), the petitioner argued that the Double Jeopardy Clause of the United States Constitution prohibited his retrial on a misdemeanor charge that accused him of "offering to make home improvements without being registered" in the state of Connecticut. Id. at 104. The petitioner filed a habeas corpus petition pursuant to § 2254 in the district court challenging his retrial, which court denied that application after finding, inter alia, that the decision to retry the petitioner "was not an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1)." See Kruelski, 316 F.3d at 105 (citation omitted). The Second Circuit affirmed, concluding that "the Connecticut ruling was neither contrary to nor an unreasonable application of clearly established federal law, as § 2254(d) requires for a grant of a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state." Kruelski, 316 F.3d at 111. However, in neither of the above cases does it appear as though either the petitioner or respondent argued that the petition could only be properly brought and considered under either § 2241 or § 2254.
In Marte v. Berkman, No. 11 CIV. 6082, 2011 WL 4946708 (S.D.N.Y. Oct. 18, 2011), United States District Judge John F. Keenan recently considered this very issue. That court noted that the federal circuit courts which have specifically addressed this issue have uniformly held that a pretrial petition seeking to preclude a re-trial is properly brought pursuant to § 2241. Marte, 2011 WL 4946708, at *5 (citing Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 2007); Stow v. Murashige, 389 F.3d 880, 885 (9th Cir. 2004); Jacobs v. McCaughtry, 251 F.3d 596, 597 (7th Cir.2001) (per curiam); and Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998)); see also Martinez, 644 F.3d at 241-43; Palmer v. Clarke, 961 F.2d 771 (8th Cir. 1992). The Marte court then opined that even though the petitioner in that case brought his action pursuant to § 2254, such petition before was properly considered under § 2241 and thereby "outside the confines of AEDPA." Marte, 2011 WL 4946708, at *7.
This Court is persuaded by the above authority and therefore finds that this action was properly filed as a petition brought under 28 U.S.C. § 2241, and that the claims asserted herein must therefore be reviewed de novo under that statute.*fn4
B. Substance of Hoffler's Claims*fn5
1. Appellate Division's Failure to Address Hoffler's Legal Sufficiency Claim
Petitioner claims that his federal constitutional rights were violated because the Appellate Division did not consider Hoffler's claims that the evidence adduced at trial was insufficient to support the jury's guilty verdict when it reversed his conviction. See Petition at ¶ 9. He contends that the prosecution's case was "wholly circumstantial," and lists a variety of reasons in support of his assertion that the prosecution's "case-in-chief was legally insufficient as a matter of federal constitutional law." Id.; see also Supporting Mem., Points III, IV.
CPL § 470.15 discusses the scope of review that appellate courts in New York are required to afford criminal appeals before the Appellate Division. That provision of the CPL provides, in relevant part:
Upon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant.
CPL § 470. 15(1) (emphasis added). Thus, where the Appellate Division has determined that a conviction must be set aside on the basis of an issue raised on appeal, it is not required to consider whether other grounds asserted by the appellant have merit. People v. Burke, 96 A.D.2d 971, 972 (3d Dept. 1983) (in light of the fact that the Third Department was "reversing the judgment on other grounds, [it] need not consider if the testimonial error would cause us to reverse in the interests of justice") (citing CPL § 470.15).
In the criminal matter below, the Appellate Division initially rejected "a host of pretrial errors" asserted by Hoffler in support of his appeal. Hoffler, 53 A.D.3d at 118. It then noted that the record established that, prior to the commencement of Hoffler's jury trial, there was a "complete failure to swear any of the prospective jurors in accordance with" the CPL. Id. at 120. In discussing this requirement, the Third Department noted that, under New York law:
CPL 270.15 requires the administration of two distinct and separate oaths prior to the inception of a jury trial. The first, contained in CPL 270.15 (1)(a), mandates that, prior to any questioning, the names of not less than 12 members of the panel shall be drawn and such persons "shall take their places in the jury box and shall be immediately sworn to answer truthfully questions asked them relative to their qualifications to serve as jurors in the action." After examination of the prospective jurors' qualifications and the exercise of peremptory challenges and challenges for cause (see CPL 270.15 [2]), the remaining jurors must be given the second prescribed oath, in which they are "sworn to try the action in a just and impartial manner, to the best of their judgment, and to render a verdict according to the law and the evidence" (CPL 270.15 [2]).
Hoffler, 53 A.D.3d at 120. The Third Department concluded that none of the prospective jurors were ever administered the oath of truthfulness required by CPL § 270.15(1)(a) prior to being questioned during voir dire, Hoffler, 53 A.D.3d at 121, and that the failure to comply with that "clear statutory directive," which is "a fundamental part of a criminal jury trial," required the reversal of Hoffler's conviction without any proof of prejudice on the part of Hoffler. Id. at 122-23. It concluded its decision by noting that the failure to administer that oath "invalidated the entire trial." Id. at 124. It therefore reversed Hoffler's conviction and remitted the matter back to the County Court for a new trial. Id.
In denying Hoffler's Article 78 Petition which sought to bar his re-trial on the Indictment, the Appellate Division noted that "the failure to administer [the required] oath to the jurors constituted a fundamental defect in the proceedings, rendering the trial a nullity." Hoffler, 72 A.D.3d at 1184. That Court further reasoned that because Hoffler's trial was a nullity, he "was never 'prosecuted' under the indictment" and "never placed in jeopardy even though the trial proceeded to its conclusion." Id. at 1185.
Petitioner argues at some length that the Appellate Division's failure to address his argument that the evidence adduced at trial was legally insufficient to support the jury's verdict was improper and prohibits his re-trial on the charges in the Indictment. See Petition at pp. 3-14; Supporting Mem. at Point IV; Reply at pp. 12-16. However, these claims are meritless. In New York, for a criminal defendant to succeed on an appellate challenge to the sufficiency of evidence adduced at trial, he must establish that " 'after viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found essential elements of the crime beyond a reasonable doubt.' " People v. Schulz, 4 N.Y.3d 521, 529 (2005) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In the criminal matter below, the Third Department had already determined that the "trier of fact" at Hoffler's trial had not been properly empaneled, and that therefore the "entire trial" was invalid. See Hoffler, 53 A.D.3d at 124. Since the Appellate Division determined that no trier of fact could properly consider the evidence offered at Hoffler's trial, any discussion regarding the evidence presented to that improperly empaneled body may well have been viewed by that court to be advisory in nature because the Third Department found Hoffler's entire trial to be both "invalid," Hoffler, 53 A.D. 3d at 121, and "a nullity." Hoffler, 72 A.D.3d at 1185. It is well-settled that "the giving of [advisory] opinions is not the exercise of the judicial function" of New York appellate courts. New York Public Interest Research Group, Inc. v. Carey, 42 N.Y.2d 527, 529 (1977); see, e.g., Ostrover v. City of New York, 192 A.D.2d 115, 118-19 (1st Dept. 1993) ("it is well-established that courts are not empowered to render advisory opinions, or determine abstract, mood, hypothetical, remote or academic questions") (internal quotation marks and citation omitted).
Petitioner has cited no authority, and this Court's research has disclosed none, in which the United States Supreme Court, the Second Circuit Court of Appeals, or any district court within this circuit has declared that an appellate court must decide a challenge to the sufficiency of the evidence notwithstanding the fact that such appellate court already concluded that the jury that rendered the guilty verdict challenged by a party had never been properly sworn and that therefore the entire trial was invalid.*fn6
Since the Appellate Division concluded that Hoffler's trial was invalid because prospective jury members were never administered a required oath prior to jury selection, and nothing before this Court suggests that such determination was erroneous, this Court finds that the failure of the Third Department to consider Hoffler's appellate argument challenging the sufficiency of the evidence adduced at trial was not erroneous in any way.*fn7 Since Hoffler has not demonstrated that any of his constitutional rights were violated by the Third Department's failure to consider that appellate claim, he is not entitled to federal habeas relief on this theory.
2. Double Jeopardy Claim
Petitioner also appears to argue that a finding that he was never placed in jeopardy is inconsistent with the realities of his original trial. See Petition at pp. 11-12, 20. He specifically contends that the "extraordinary holding of the New York courts treats [his] lengthy trial that occurred after the administration of the oath by which jeopardy attached under the Constitution as a non-event for purposes of federal constitutional law." Id. at p. 20. These claims are specious.
Initially, these arguments appear to ignore the fact that, in reversing Hoffler's conviction, the Appellate Division specifically found that prospective jury members were not administered an oath which is required under New York's CPL. Hoffler, 53 A.D.3d at 120-24. Petitioner's current claim that jeopardy attached "after the administration of the oath" at his criminal trial, see Petition at p. 20, is therefore flawed.
Next, it is plain that, in light of the Third Department's decision which vacated Hoffler's conviction, he was never placed in jeopardy at his initial trial. The Supreme Court has emphasized that "[j]eopardy denotes risk. In the constitutional sense, jeopardy describes the risk that is traditionally associated with criminal prosecution." Breed v. Jones, 421 U.S. 519, 528 (1975); see also United States v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977) ("The protections afforded by the [Double Jeopardy] Clause are implicated only when the accused has actually been placed in jeopardy") (emphasis added). In light of the Appellate Division's determination that reversed Hoffler's first degree murder conviction and "invalidated the entire trial," Hoffler, 53 A.D.3d at 124, it is patent that petitioner was never placed in jeopardy at his original trial.
Even if, as Hoffler suggests, he was placed in jeopardy during the course of his original trial, his successful appeal necessitates a finding that such jeopardy never terminated and that his re-trial on the charges contained in the Indictment is therefore permissible. As the Supreme Court explained in Sattazahn v. Pennsylvania, 537 U.S. 101, 106 (2003), "[w]here . . . a defendant is convicted of murder and sentenced . . . but appeals the conviction and succeeds in having it set aside, we have held that jeopardy has not terminated;" see also United States v. McCourty, 562 F.3d 458, 473 (2d Cir. 2009) ("The protection of the Double Jeopardy Clause 'applies only if there has been some event, such as an acquittal, which terminates the original jeopardy' " (quoting Richardson v. United States, 468 U.S. 317, 325 (1984)) (other citations omitted). Thus, even assuming, arguendo, that jeopardy attached during the course of Hoffler's trial notwithstanding the fact that the jury was never properly sworn, his claim that his re-trial is prohibited by the Double Jeopardy Clause of the United States Constitution is meritless because his successful appeal did not terminate that original jeopardy. Sattazahn, 537 U.S. at 106.
3. Constitutionality of New York's Nullified Proceedings Rule
In his final argument in support of the present application, petitioner contends that New York's nullified proceedings rule, codified in CPL § 40.30(3), "circumvent[s], and essentially nullif[ies], the Double Jeopardy Clause of the Fifth Amendment." Petition at pp. 22-23; see also Supporting Mem., Point VI; Reply at pp. 16-17.
This Court therefore briefly reviews the provision of the CPL upon which Hoffler bases this aspect of his habeas application.
CPL § 40.30 provides, in relevant part, that:
1. Except as otherwise provided in this section, a person "is prosecuted" for an offense, within the meaning of section 40.20, when he is charged therewith by an accusatory instrument filed in a court of this state or of any jurisdiction within the United States, and when the action either:
(a) Terminates in a conviction upon a plea of guilty; or
(b) Proceeds to the trial stage and a jury has been impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn.
3. Despite the occurrence of proceedings specified in subdivision one, if such proceedings are subsequently nullified by a court order which restores the action to its pre-pleading status or which directs a new trial of the same accusatory instrument, the nullified proceedings do not bar further prosecution of such offense under the same accusatory instrument.
In support of his claim that CPL § 40.30(3) is unconstitutional, Hoffler argues that the nullified proceedings rule adopted by New York had its genesis in the Supreme Court case of Ball v. United States, 163 U.S. 662 (1896), and that subsequent to that decision, courts "permitted retrials following appellate reversals in a wide range of circumstances including insufficient evidence at prior trials." Petition at p. 23. Hoffler notes that in 1978, the United States Supreme Court decided Burks v. United States, 437 U.S. 1 (1978), which overruled prior Supreme Court precedent which permitted defendants to be re-tried following an appellate reversal for insufficient evidence. Petition at p. 23. Hoffler argues that "[t]he rationale of the Burks opinion and the decision in Crist v. Bretz [437 U.S. 28 (1978)] . . . powerfully suggest that New York's 'nullified procedure rule,' as applied to Mr. Hoffler, runs afoul of both the Fifth and Fourteenth Amendments." Petition at p. 23.
In Burks, the Supreme Court reviewed prior Supreme Court cases that had discussed the scope of the Double Jeopardy Clause. Burks, 437 U.S. at 6-10. The Burks Court noted that those prior decisions had culminated in "at least one proposition emerg[ing]: a defendant who requests a new trial as one avenue of [appellate] relief may be required to stand trial again, even when his conviction was reversed due to failure of proof at the first trial." Burks, 437 U.S. at 10. The Burks Court rejected that proposition and squarely held:
The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials.
Burks, 437 U.S. at 11.*fn8
In Crist, the Supreme Court addressed the issue of whether the federal
rule that governed the time when jeopardy attached in a jury trial was
binding on the state of Montana. Crist, 437 U.S. at 29.*fn9
In finding that the federal rules governed this issue, the
Crist Court explicitly held that "[t]he federal rule that jeopardy
attaches when the jury is empaneled and sworn is an integral part of
the constitutional guarantee against double jeopardy." Crist,
U.S. at 38.
Hoffler's reliance on Burks and Crist is plainly misplaced.
As is discussed more fully above, the Appellate Division declined to address the issue of whether the evidence adduced at Hoffler's trial was legally sufficient. Therefore, Burks' pronouncement that Double Jeopardy bars the re-prosecution of an individual where an appellate court reverses a criminal conviction on evidence sufficiency grounds, see Burks, 437 U.S. at 11, does not provide Hoffler with legal support for his request for federal habeas intervention herein. Moreover, Hoffler's claim that Crist supports his request for habeas relief appears to overlook the significant fact that his first degree murder conviction was reversed by the Appellate Division based upon that court's finding that there was a "complete failure to provide the oath of truthfulness to the prospective jurors" at Hoffler's trial. Since Crist stands for the proposition that, "jeopardy attaches when the jury is empaneled and sworn," Crist, 437 U.S. at 38, and the jury that convicted Hoffler was never properly sworn, Hoffler, 53 A.D.3d at 124, petitioner's current claim that Crist supports his request for federal habeas intervention is meritless.
New York's nullified proceeding law, which permits the re-trial of an individual after an appellate court finds that a conviction must be reversed, is wholly consistent with both past and present Supreme Court authority. See Sattazahn, 537 U.S. at 115; Montana v. Hall, 481 U.S. 400, 402 (1987) ("[i]t is a venerable principl[e] of double jeopardy jurisprudence that the successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict . . . poses no bar to further prosecution on the same charge' ") (internal quotation marks and citations omitted). As in Sattazahn, the petition before this Court: "hardly presents the specter of 'an all-powerful state relentlessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt submitted to the first trier of fact.' " Sattazahn, 537 U.S. at 115 (quoting United States v. Scott, 437 U.S. 82, 96 (1978)). "Instead, we see here a State which . . . [seeks to] pursue its not-yet-vindicated interest in one complete opportunity to convict [one] who ha[s] violated its laws." Sattazahn, 537 U.S. at 115 (other internal quotation marks and citation omitted). Because Hoffler has provided no persuasive argument that supports his claim that New York's nullified proceeding law is unconstitutional, this final claim in his petition must be denied.
Finally, since all of the claims asserted by Hoffler may properly be denied by this Court without a hearing, the Court shall not conduct any evidentiary hearing in this matter as requested by petitioner. See Petition at p. 25.*fn10
Finally, the Court notes that 28 U.S.C. § 2253(c) provides, in relevant part, as follows:
Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from . . . the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court . . . .*fn11
28 U.S.C. § 2253(c)(1)(A). A Certificate of Appealability may only be
issued "if the applicant has made a substantial showing of the denial
of a constitutional right." See 28 U.S.C. § 2253(c)(2). Since
petitioner has failed to make such a showing herein,*fn12
the Court declines to issue any Certificate of Appealability
in this matter.
ACCORDINGLY, it is
ORDERED that Hoffler's petition (Dkt. No. 1) is DENIED and DISMISSED; and it is further
ORDERED that no Certificate of Appealability shall be issued in this case because petitioner has failed to make a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c); and it is further
ORDERED that the Clerk serve a copy of this Memorandum-Decision and Order on counsel for the parties to this action.
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Mohawk College got an early start to preparations for the men's varsity volleyball season when hopefuls displayed their talents in a summer training camp at the Fennell Gymnasium over the weekend (June 27-28).
Under the watchful eyes of Mountaineers' assistant coach Matt Schnarr, prospects included two players already committed to play this fall – Andrew Ross from South Secondary School in London and Mitch Sawatsky of St. Catharines and Eden High School.
Ross, who plays both left side and libero, has a very physical build. "He's got a strong core, said Schnarr. "He's also got great ball control, a good demeanour and comes to Mohawk from a good club programme."
His Forest City Volleyball Club finished third in the national championship. Ross is aware of the success the Mountaineers had the past two seasons, winning Ontario Colleges Athletic Association gold and bronze medals and a Canadian Colleges Athletic Association bronze. "They were a good team the last two years," said Ross, "and I decided to come here, instead of university, to take the Architectural Technology programme."
Sawatsky, a left side player who will enroll in the Police Foundations course at Mohawk's Brantford campus, was a high school team mate of Mountaineer Zac Schulz. "I came to practice during the Christmas break and saw the players had a really good attitude," said Sawatsky. "I like Mitch's size", said Schnarr. "He's fit and very strong in the attack. He's also dynamic off the service line and should do well in our programme."
The Mohawk training camp was well attended and included two veterans looking to return for another season, Chris Davidson and Cameron Henschel.


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The top men's basketball players in the Ontario Colleges Athletic Association were honoured Wednesday (March 2) in Sault Ste. Marie.
Eric Smith (Ajax) of the Durham Lords is the 2010-11 player of the year. The OCAA East scoring champion led all players in the conference averaging 21.6 points per game. The third-year forward was the only OCAA player to eclipse 200 rebounds, grabbing 206 boards. He is also the only student-athlete to average a double-double for the regular season.
Smith is a Canadian Colleges Athletic Association (CCAA) all-Canadian and an OCAA East first-team all-star.
Njuguna Waiganjo (Kenya) of the OCAA East champion Algonquin Thunder is also a CCAA all-Canadian. The third-year guard was one of five OCAA players to average 18.0 points per game and was a co-leader in assists with 83. Waiganjo contributed 42 steals and is an OCAA East first-team all-star.
Sault Cougars forward Randy Frimpong (Toronto) is the OCAA rookie of the year. Frimpong led the Cougars in points averaging 17.0 per game. He also had a team-high 17 blocks while adding 116 rebounds, 31 assists and 17 steals. The OCAA West rookie of the year is a member of the OCAA West second-team all-stars as well as the division all-rookie team.
Algonquin Thunder head coach Trevor Costello is a nominee for CCAA coach of the year. The Thunder flirted with a perfect regular season record, finishing at 19-1. Algonquin was also ranked No. 1 nationally for several weeks. The Thunder outscored their competition by 376 points to lead the OCAA. Costello is the OCAA East coach of the year.
Landry Ndayitwyeko (Windsor) of the Algonquin Thunder is the OCAA East defensive player of the year. The second-year player contributed 66 rebounds and 11 steals on a team that was one of the stingiest in points allowed in the division.
Kern Lewis (Toronto) of the Humber Hawks is the OCAA West defensive player of the year. The fifth-year point guard earned 86 rebounds and 31 steals in 2010-11. OCAA West champion Humber tied Algoma for a division-best 1,163 points allowed.
Algonquin Thunder guard Derrek Mooney (Ottawa) is the OCAA East rookie of the year. Mooney averaged 8.0 points per game, contributing 53 rebounds, 22 assists and 12 steals. He is a member of the OCAA East all-rookie team.
Shawn Collins of the Humber Hawks is the OCAA West coach of the year. Humber led the division with a record of 17-1, outscoring the competition by 314 points to lead all OCAA West teams.
Joining Smith and Waiganjo as OCAA East first-team all-stars are Maxim Clarkson (Peterborough) of Fleming (Peterborough); Vadim Halimov (Uzbekistan) of Seneca; and Mathieu Riendeau (Ottawa) of St. Lawrence (Kingston)
The OCAA West first-team all-stars are led by division scoring champion Rob Pierce (Windsor) of Lambton. Pierce is joined by Dele Oworu (Winnipeg) of Algoma; Michael Acheampong (Toronto) of Humber; Aminu Bello (Hamilton) of Mohawk; and Khalid Abdel-Gabar (Mississauga) of Sheridan.
OCAA East second-team all-stars consist of Algonquin's Abdul Kosar (Ottawa); Cambrian's Josh Budd; Durham's Courtney Small (Oshawa, Ont.); and George Brown's Collin Whitely (Toronto) and Salissou Abdoulkader (Toronto).
Joining Frimpong as OCAA West second-team all-stars are Algoma's Patrick Murray (Sault Ste. Marie); Fanshawe's Jordan Dixon (Kitchener); Mohawk's Jermaine Decosta (Hamilton); and Niagara's C.J. Smith (Scarborough).
In addition to Mooney, Jason Miller of Cambrian; Christoff Pierre (Brampton) of Durham; Russell Lagman (Ajax) of George Brown; and Tevin Goodridge (Markham) of Georgian are members of the OCAA East all-rookie team.
Taylor Dowhaniuk (Hamilton) of Mohawk; Jimmy Bilenga (Hamilton) of Niagara; Jameel Williamson (Pickering) of St. Clair; and Michael Selkridge (Brampton) of Sheridan join Frimpong on the OCAA West all-rookie team.


text:
The average S&P 500 (NYSEARCA:SPY) stock that reported earnings this past earnings season (the Q3 reporting period ended on Tuesday) gained 0.57% on its report day. Below are the S&P 500 stocks that performed the best and the worst on their report days. As shown, Harman (NYSE:HAR) saw the biggest gain on its report day this past season with a one-day gain of 20.55%. An earnings report that bumps up the value of the company by a fifth is pretty impressive! Estee Lauder (NYSE:EL) ranked second with a gain of 17.94%, followed by Citrix Systems (NASDAQ:CTXS), Genworth Financial (NYSE:GNW), Cabot Oil & Gas (NYSE:COG), and Akamai (NASDAQ:AKAM). Other notables on the list of earnings season winners include Newell Rubbermaid (NYSE:NWL), Bank of America (NYSE:BAC), Intuitive Surgical (NASDAQ:ISRG), International Paper (NYSE:IP), priceline.com (NASDAQ:PCLN) and Dow Chemical (NYSE:DOW).
(Click charts to expand)
Netflix (NASDAQ:NFLX) was the big loser in the S&P 500 this earnings season. The stock lost a whopping 34.90% on its report day. Avon Products (NYSE:AVP) was the second worst with a one-day decline of 18.25%, followed by DeVry (NYSE:DV), Computer Sciences (NYSE:CSC), Newfield Exploration (NYSE:NFX), Whirlpool (NYSE:WHR), AK Steel (NYSE:AKS), and Amazon.com (NASDAQ:AMZN). US Steel (NYSE:X), Halliburton (NYSE:HAL), Time Warner (TWC), Kellogg (NYSE:K), Harley-Davidson (NYSE:HOG), and Sprint (NYSE:S) are other notables on the list of earnings season losers. All of these stocks declined by more than 7% on their report days this past season. Better luck next time!


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United States District Court, S.D. New York
October 19, 2004.
IN RE: METHYL TERTIARY BUTYL ETHER ("MTBE") PRODUCTS LIABILITY LITIGATION. This document relates to: State of New Hampshire
Amerada Hess Corp., et al., No. 04 Civ. 4976 (SAS). The People of the State of California, et al. v. Atlantic Richfield Co., et al., No. 04 Civ. 4972 (SAS).
This multi-district litigation consists of dozens of cases, in
which plaintiffs seek relief for contamination or threatened
contamination of groundwater from defendants' use of the gasoline
additive methyl tertiary butyl ether ("MTBE").*fn1
Plaintiffs include states, cities, municipalities, private water providers, and other entities. Although the cases were filed in
various state courts, defendants removed the actions to federal
court, asserting four grounds of subject matter jurisdiction: (1)
federal agent jurisdiction; (2) substantial federal question; (3)
complete preemption; and (4) bankruptcy jurisdiction.*fn2
Certain plaintiffs moved to remand I denied the motions,
holding that this Court has federal agent jurisdiction over some,
and bankruptcy jurisdiction over all, of the MTBE cases pending
before it.*fn3 I found that defendants had sufficiently
averred facts supporting removal; specifically, they alleged that
they added MTBE to gasoline at the direction of the EPA, a
federal agency, to comply with the requirements of the
Reformulated Gasoline ("RFG") Program and the Oxygenated Fuels
Program.*fn4 This allegation sufficed to establish
jurisdiction based on defendants having acted as federal agents.
I further found defendants' allegations sufficient to establish federal agent
jurisdiction with respect to certain non-covered areas because
the federal government expected to turn some non-covered
locations into RFG areas as a practical matter when it
promulgated the RFG Program.*fn5 Finally, I held that the
Court has bankruptcy jurisdiction because plaintiffs have alleged
some actions by defendants that pre-date Texaco's (one of the
defendants) plan of reorganization, and questions concerning when
claims arose and whether they were discharged involve the
enforcement and construction of Texaco's discharge
Notwithstanding the Court's federal question jurisdiction,
plaintiffs State of New Hampshire ("New Hampshire") and The
People of the State of California ("California") (collectively
"State Plaintiffs") move to remand based on state sovereign
immunity. I now consider whether principles of sovereign immunity
are violated when a state plaintiff voluntarily prosecutes a
claim and its case is removed from state to federal court without
its consent.
Section 1447(c) of Title 28 provides that a case removed from
state court shall be remanded "[i]f at any time before final
judgment it appears that the district court lacks subject matter jurisdiction." When a party
files a motion to remand challenging the removal of an action
from state court, "the burden falls squarely upon the removing
party to establish its right to a federal forum by `competent
proof.'"*fn7 "Out of respect for the independence of state
courts, and in order to control the federal docket, `federal
courts construe the removal statute narrowly, resolving any
doubts against removability.'"*fn8 If the removing party
cannot establish its right to removal by "competent proof," the
removal was improper, and the district court must remand the case
to the court in which it was filed.*fn9
State Plaintiffs argue that the Eleventh Amendment of the
United States Constitution protects states from being
involuntarily subjected to federal jurisdiction.*fn10 They argue that respecting their right to
pursue these actions in state court is consistent with the
preeminent purpose" of state sovereign immunity, i.e., the
dignitary interest of States, and the Supreme Court's expansive
interpretation of the Eleventh Amendment.*fn11 New Hampshire
asserts that the federal officer removal statute cannot trump
sovereign immunity.*fn12 California contends that in Hans
v. Louisiana,*fn13 the Supreme Court established a
presumption against proceedings or suits that were "anomalous or
unheard of" at the time the Constitution was adopted; since
removing States to federal court without their consent was
anomalous and unheard of, defendants cannot establish their right
to a federal forum, and the case must be remanded.*fn14 In
addition, State Plaintiffs assert that cases upholding removal
over the objections of sovereigns improperly rely on two
inapposite Supreme Court opinions; improperly limit their
analyses to the literal text of the Eleventh Amendment; and fail
to discuss and apply the Hans presumption.*fn15
Defendants counter that sovereign immunity does not bar removal
where the removal is based on section 1442 of Title 28 because
Congress created the federal officer removal statute in order to
protect the supremacy of federal law and the sovereignty of the
federal government against intrusion by the States. They argue
that the Eleventh Amendment and sovereign immunity doctrines do
not bar removal, but only prohibit lawsuits against the States,
i.e., the immunity only applies when a State is the defendant.
Moreover, they contend that the Hans presumption does not bar
removal because nothing in Hans or any other case insulates
non-consenting States from court process. Finally, defendants
assert that California cannot raise the defense of sovereign
immunity because the lawsuit is brought by the Sacramento
District Attorney, who does not represent the State of
A. Sovereign Immunity The Eleventh Amendment provides: "The Judicial power of the
United States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects
of any Foreign State."*fn17 Discussions of state sovereign
immunity often begin and end here because the text of the
Amendment seems clear. On its face, the Eleventh Amendment only
prohibits suits against non-consenting States in federal court;
it does not bar removal of cases in which the State is the
However, the Supreme Court has explained:
The phrase ["Eleventh Amendment immunity"] is a
convenient shorthand but something of a misnomer, for
the sovereign immunity of the States neither derives
from, nor is limited by, the terms of the Eleventh
Amendment. Rather, as the Constitution's structure,
its history, and the authoritative interpretations by
this Court make clear, the State's immunity from suit
is a fundamental aspect of the sovereignty which the
States enjoyed before the ratification of the
Constitution, and which they retain
today. . . .*fn18
Therefore, State Plaintiffs' argument that sovereign immunity
bars their involuntary removal cannot be dismissed out of hand
1. Common Law Origin
The principle of sovereign immunity developed in England based
on the feudal system.*fn19 A lord could not be sued by a
vassal in his own court, but each lord could be sued in the court
of a higher lord.*fn20 Since the king reigned at the top of
the system, he was not subject to suit in any court "`[f]or all
jurisdiction implie[d] superiority of power. . . .'"*fn21
"Only the sovereign's own consent could qualify the absolute
character of that immunity."*fn22 Sovereign immunity was also premised on the notion that the
king could do no wrong.*fn23 In adhering to this fiction,
courts distinguished between the king and his agents in order to
provide relief for the sovereign's transgressions.*fn24 The
courts permitted suits against the king's officers on the theory
that the king would never have authorized unlawful conduct, and
therefore his agent's unlawful acts should not be treated as the
acts of the sovereign.*fn25 As Justice Stevens explains:
The rationale for this principle was compelling.
Courts did not wish to confront the king's immunity
from suit directly; nevertheless they found the
threat to liberty posed by permitting the sovereign's
abuses to go unremedied to be intolerable. Since in
reality the king could act only through his officers,
the rule which permitted suits against those officers
formally preserved the sovereign's immunity while
operating as one of the means by which courts curbed
the abuses of the monarch.*fn26
2. Federalism and the Constitutional Structure
The framers of the Constitution rejected "`the concept of a
central government that would act upon and through the States' in
favor of `a system in which the State and Federal Governments
would exercise concurrent authority over the
people. . . .'"*fn28 The Constitution therefore altered some
common law principles to balance the supremacy of federal law
with the independent sovereignty of States.*fn29
At the time this nation was founded, the States were sovereign,
and "[t]he suability of a state, without its consent, was a thing
unknown to the law."*fn30 Under the common law, however, a
sovereign was not immune from suit in another sovereign's
court, and to the extent he was not suable, his immunity "must [have been] found either in an agreement express or implied
between the two sovereigns, or in the voluntary decision of the
second to respect the dignity of the first as a matter of
comity."*fn31 Although States would retain immunity in their
own courts under the federal system, they feared that federal
jurisdiction would subject them to raids on their state
treasuries.*fn32 Many of the States were heavily indebted as
a result of the Revolutionary War,*fn33 and they insisted on
protection from being sued in federal court as a condition of
participating in the constitutional design. The framers assured
the people that sovereign immunity would be preserved in the new
government, and the Constitution was adopted with that
understanding.*fn34 The federal system could not have been established without the
agreement that the States could not be sued by private citizens
in federal court.*fn35 As it evolved in the United States
then, the doctrine of sovereign immunity encompasses two
different concepts "one applicable to suits in the sovereign's
own courts and the other to suits in the courts of another
sovereign."*fn36 Under the constitutional bargain, States
would be immune from suit in federal court just as they were
immune from suit in their own courts.
3. The Eleventh Amendment and Sovereign Immunity
Shortly after the Constitution's adoption, the Supreme Court
was tasked with determining whether a private citizen could bring
a suit against the State of Georgia in federal court.*fn37
Article III of the Constitution provides, in relevant part: "The
judicial Power shall extend to . . . Controversies between a State and Citizens of another State; [and between] a State and foreign
States, Citizens or Subjects."*fn38 Based on a literal reading
of Article III's jurisdictional grant, the Court determined that Georgia
could be sued in federal court.*fn39 The decision sent a "shock
of surprise throughout the country" because people had assumed that
the States' traditional immunity had been preserved.*fn40
The Eleventh Amendment was proposed and adopted in order to
overrule the Court's misinterpretation.*fn41 The Amendment
was drafted narrowly because it was not meant to redefine federal
jurisdiction,*fn42 but rather, to confirm two suppositions: (1) that each State is a sovereign entity in our
federal system; and (2) it is inherent in the nature of
sovereignty not to be amenable to the suit of an individual
without its consent.*fn43 "[A] suit is against the sovereign
if the judgment sought would expend itself on the public treasury
or domain, or interfere with the public administration, or if the
effect of the judgment would be to restrain the Government from
acting, or to compel it to act."*fn44
The Supreme Court has repeatedly declared that the Eleventh
Amendment provides a defense against federal jurisdiction when a
State is being sued.*fn45 In keeping with common law
tradition and constitutional design, however, the Court has also looked beyond the Amendment's language to
determine the scope of a State's protection. It has found
sovereign immunity to apply to cases involving citizens suing
their own States,*fn46 federal corporations,*fn47
foreign nations,*fn48 and Indian tribes,*fn49 and as a
defense to suits in admiralty*fn50 and claims for
administrative adjudication*fn51 even though the
Amendment's text does not extend so far.
There are some limits on sovereign immunity, however. Sovereign immunity may be waived by the State*fn52 or, in certain
circumstances, be abrogated by Congress.*fn53 The immunity
is limited by the enforcement provisions of Section 5 of the
Fourteenth Amendment,*fn54 and by the doctrine of Ex parte
Young.*fn55 Under Ex parte Young, private parties are
permitted to sue a State for injunctive relief for constitutional
violations committed by its officers by suing a state
Having reviewed the historical origins, constitutional
structure, and jurisprudence of sovereign immunity, it is
apparent that state sovereign immunity, as embodied by the
Eleventh Amendment, bars a suit against a State in federal court
without its consent. I now turn to the relationship between state
sovereign immunity and removal.
B. Removal 1. Case Law
With few exceptions, courts that have addressed the
intersection of sovereign immunity and removal have held that the
doctrine does not prohibit the removal of State-initiated actions
to federal court without the State's consent.*fn57 State Plaintiffs posit that the majority of district courts
have misconstrued the Eleventh Amendment and urge this Court to
follow the reasoning of California v. Steelcase Inc.,*fn58
and Moore v. Abbott Laboratories, Inc.*fn59 instead. In
Steelcase, the People of the State of California filed a civil
enforcement action, alleging violations of the California
antitrust and unfair competition statutes. The defendant removed
the action to federal court based on diversity jurisdiction, and
the court sua sponte remanded the action. The Steelcase court
held that even if there was diversity of citizenship among the
parties, the court lacked jurisdiction because the Eleventh
Amendment barred removal without the State's consent. The court
reasoned that the Eleventh Amendment "is an immunity from being
made an involuntary party to an action in federal court, [and]
should [therefore] apply equally to the case where the state is a
plaintiff in an action commenced in state court and the action is removed to
federal court by the defendant."*fn60 Similarly, in Moore,
the State of Mississippi brought an action against manufacturers
of infant formula for violations of the Mississippi antitrust
statutes. In holding that the proscriptions of the Eleventh
Amendment applied to the State as plaintiff, the Moore court
explicitly relied on the reasoning of Steelcase.*fn61
Steelcase and Moore are unpersuasive, however, because they
rest on the false premise that sovereign immunity prevents a
State from being made an involuntary party to an action in
federal court. The opinions cite no authority for this
proposition, nor do they engage in anything more than a cursory
examination of the Eleventh Amendment. As previously discussed,
state sovereign immunity only applies to States as defendants,
not plaintiffs.
2. The Hans Presumption Does Not Bar Removal of These
California asserts that federal jurisdiction over State
Plaintiffs who have been involuntarily removed would run afoul of
the Hans presumption.*fn62 But Hans does not stand for the broad proposition urged by
California that federal courts lack jurisdiction if the suit
was "anomalous or unheard of" at the time the Constitution was
adopted. Rather, it reaffirms the general principle of States'
immunity from suit by holding that the Eleventh Amendment extends
to actions brought against a State by its own citizens.*fn63
The Hans presumption functioned to preclude those claims
against which a state historically had a sovereign immunity
Furthermore, California's argument weighs against remand
because it would have been anomalous or unheard of for state
courts to exercise jurisdiction over federal questions.
The jurisdiction over [cases arising under the
constitution, laws, and treaties of the United
States] could not exist in the state courts prior to
the adoption of the constitution, and it could not
afterwards be directly conferred on them; for the
constitution expressly requires the judicial power to
be vested in courts ordained and established by the
United States.*fn65
3. Removal of Cases Brought by State Plaintiffs is Consistent
with Principles of Federalism
On the other hand, the removal of cases to federal court that
were initially brought in state court was not novel to the
founders. The Constitution presumed local prejudice and therefore
provided for diversity jurisdiction.*fn67 However, access to
federal courts would be meaningless if plaintiffs could avoid the
federal forum by simply filing their cases in state
court.*fn68 The Judiciary Act of 1789 therefore permitted
removal by defendants,*fn69 and the right "was exercised
almost contemporaneously with the adoption of the
Constitution. . . ."*fn70
The Civil War was followed by an increase in federal authority
and a curtailment of state power. Congress expanded the original
and removal jurisdiction of the federal courts in order to
protect federal officers and former slaves.*fn71 In Tennesse v. Davis,*fn72 the Supreme
Court upheld removal by a federal officer in a state criminal
proceeding because "such jurisdiction is necessary for the
preservation of the acknowledged powers of the [federal]
government."*fn73 The Court rejected the argument that
removal invaded state sovereignty because the States are not
sovereign in all respects:
[W]hen the Constitution was adopted, a portion of
that judicial power became vested in the new
government created, and so far as thus vested it was
withdrawn from the sovereignty of the State. Now the
execution and enforcement of the laws of the United
States, and the judicial determination of questions
arising under them, are confided to another
sovereign, and to that extent the sovereignty of the
State is restricted. The removal of cases arising
under those laws . . . is, therefore, no invasion of
State domain. On the contrary, a denial of the right
of the general government to remove them . . . is a
denial of the conceded sovereignty of that government
over a subject expressly committed to it.*fn74
Removal of cases in which the State is the plaintiff is
consistent with the constitutional sovereignty of States because
there is no real affront to allowing them to proceed in federal
court.*fn75 If and when their cases are finally tried, the
federal courts will apply state law, thereby respecting and
enforcing state policies, while simultaneously resolving federal
questions. In that sense, federal and state interests are
aligned. By contrast, national and local policies could be
antagonistic where the State is a defendant in federal court.
When the State is a defendant, it may have a greater interest in
having its case litigated in its own courts because a judgment
could impact the state treasury or public administration. Removal
would offend principles of federalism in that situation.
Although State Plaintiffs may be inconvenienced by proceeding
in this Court, sovereign immunity is not based on convenience
but a balance of federal and state power. Remanding the cases
would improperly shift the balance towards the States because it
would permit them to achieve unfair tactical advantages at the expense of the people.*fn76
The constitution of the United States was designed
for the benefit of all the people of the United
States. . . . It was not to be exercised exclusively
for the benefit of parties who might be plaintiffs,
and would elect the national forum, but also for the
protection of defendants who might be entitled to try
their rights, or assert their privileges, before the
same forum.*fn77
For the foregoing reasons, State Plaintiffs' motions to remand
are denied. The Clerk of the Court is directed to close these
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For We the People to reclaim our gov't, we've got to reclaim Article I, Section I lawmaking authority: youtu.be/GqEIySlV244 #A1P #CPAC
Praying today for a speedy recovery for Governor Greg Abbott Link
I joined @RepJeffDuncan & 42 other House conservatives in urging Senate to pass DHS bill that stops executive action: goo.gl/aF0Rav
Today is a great day for 'We the People' and a bad day for President Barack Obama's imperial presidency. The Supreme Court's decision today in United States v. Texas has made null and void the President's unilateral executive order that granted amnesty to millions of people living in the U.S. illegally and ignored our nation's immigration laws passed by Congress. Link
I'm sorry Barack Obama is president, but conservatives should support #TPA anyway. My piece in @NRO: nationalreview.com/article/419409…
Tonight, President Obama self-admittedly ignored the law & the will of the American people with his #ExecutiveAction: goo.gl/rkCwMe


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We love when any company, organization or country embraces technology in a fun and strategic way.
That is why when we saw the announcement for the first ever Student Film Festival from The White House we got excited.
After watching the video explanation, be sure to download the entry guide and submit your video.
We can't wait to see how technology is being used in schools around the country! We'd love to see this taken to a global level at some point.
If you enter, be sure to tell them YSN sent you.


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Tomorrow marks the one year anniversary of a tornado that caused damage in Washington and Henry counties.
Keywords: Severe Weather, Tornado, Wayland
Today begins Iowa's Severe Weather Awareness Week, which is meant to improve awareness of and response to severe weather hazards.
Keywords: Henry County, Severe Weather Awareness Week, Tornado
Will Lt. Governor Kim Reynolds be a good governor?
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call: (319) 653-2113


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Las Totoritas Peruvian Cuisine
Hollywood, FL 33024
Gustavo Rojas
- Sun 10am-8pm, Mon-Sat 11am-10pm
- $, $$
- Catering, Kid Friendly, Private Party, Takeout, Vegetarian Friendly, Wheelchair accessible
- Dinner, Lunch
- Free Parking, Parking Lot Available
- Reservations Not Necessary
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Livin' la Lima Loca
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I've probably given about 30 seconds' thought to Peruvian food in the past ten years. The culinary wonders of the Andes were totally off my radar. Yeah, I knew the little coastal country had thousands of genetically diverse varietie...
Best Ceviche
Thursday, May 12, 2005 at 4 a.m.
Lord, what foods these morsels be! Now that sushi is a staple of public school lunches and sashimi has been accepted by the apple pie/Chevrolet contingent, let's not forget the other raw fish. Spelled differently depending on...
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As a technology, Virtual Reality is gradually influencing the shape of the world. The evolution of education and removal of borders between physical and virtual environments represents a unique opportunity for education and industries alike. If that's how it is, the next logical step is an industry initiative to channel that energy, providing a starting point in sense of equipment/tools and to some extend standardize and educate foundation for virtual reality development. During the VRLA expo in Los Angeles, VR First released the results of their survey which showed that for the academic year 2016/17, over 15,000 students applied for VR programs, but they were faced with the demoralizing
Unity Rolls Google Daydream VR Support Ahead of Launch
One of the leading platforms for software development added improved support for Google's upcoming Daydream VR platform. The new Google VR SDK 1.0 makes certain VR development tasks easier, so the developers can focus on building the main features of their VR applications and games. Google said that it has partnered with Unity and Epic Games, creators of two of the most popular third-party gaming engines, so developers can use the game-building tools they already know well. The company has updated its VR development site as well, where developers can read all the documentation for the new VR platform, and see sample applications and tutorials. "Unity's native support for
360fly and RaceRender Linkup Brings Immersive Racing Videos
"I think there are lot of things that can be done around gaming, VR [Virtual Reality] and AR [Augmented Reality]." said Greg Maffei, CEO of Liberty Media. "There's an enormous amount of video feed and data that we have about the races that we are already capturing that we are not in any way processing incrementally for the dedicated fan, or opportunities around things like gambling." When such words come from the co-owner of FIA Formula E Championship, and the new owner of Formula One World Championship i.e. F1 it is clear that the way how we consume sports is going to change in the future
Samsung Launches New Generation of Ultra Fast SSD Storage
At the Samsung's SSD Global Summit in South Korea, the company officially unveiled their next generation SSDs. All the models launched use the M.2 connector based around the NVMe (PCI Express SSD) standard. The new 960 PRO SSD is the successor to the 950 PRO, launched at last year's Global Summit as Samsung's first M.2 PCIe SSD for the retail market. The new 960 EVO introduces a more affordable option based on TLC NAND flash. Earlier this year, Samsung released the SM961 and PM961, a new generation of OEM M.2 PCIe SSDs. These brought V-NAND to the OEM side of the family and introduced a new Samsung "Polaris" SSD
How is VR Changing the Face of Alternative Online Entertainment?
While Virtual Reality is an exciting new technology, it didn't "BOOM" quite as it was expected to, mostly due to lack of innovative content which is expected in the fourth quarter of this year, as well as into the 2017 – look for Hollywood franchise tie-ins as VR experience centers roll out, such as the collaboration between Acer, IMAX and Starbreeze. As a technology, VR is certainly a revolutionary innovation, but it probably won't become as mass-adopted as smartphones, for example. VR is here, and it has already started its quest to revolutionize entertainment as we know it. And it will have its effects on all
Logitech Acquired Saitek For its Future VR Controllers?
Peripherals manufacturer Logitech recently announced the acquisition of Saitek brand and Saitek's line of controller products. Logitech announced the news in a blog post, calling it an "exciting day for Logitech" and heralding Saitek as the "go-to" source for fans of spacefaring and simulation-style games such as Elite Dangerous, Eve Valkyrie, Star Citizen, Microsoft Flight Simulator and Farm Simulator. Logitech acquired Saitek from Mad Catz for mere $13 million in cash, leaving even more questions about the stability of Saitek's previous owner, Mad Catz. The future of Saitek's long-awaited, custom controller for Chris Roberts' upcoming game, Star Citizen is also in question. In 2007, Mad Catz purchased
MSI Backpack Brings Freedom into VR
One of key detractors for a complete immersion into virtual reality experience is the presence of cables which hinder your digital movement. Hence, the question for the VR industry is… what is freedom and how one becomes free? If you ask that question to someone from MSI, he or she would just smile and gave you something… backpack alike. You would than realize that suddenly it's possible to have your cake and eat it too. It is possible to hunt dragons next to your sleeping girlfriend or boyfriend without waking her (or him). Actually, not just one pack but several big, ugly packs of dragons. What
Can Gleechi Step up the Game for VR in Human Machine Interaction?
Swedish robotics specialists in Gleechi are working on a system to allow game developers to deliver realistic, real-time and dynamic interaction animations, so that your VR hands can finally grasp in-game objects like it should. For last eight years Gleechi was working on how to enable robots to use their hands more efficiently, and when VR made it big they realized that virtual reality have same problem robots have with using their hands. Some solutions for this problem in VR was that hands disappear, object jumps into your hands, unrealistic griping angles and even hands getting into object itself while holding. Now, Gleechi claim to be well
Meet the First 4K VR Headset
While the initial development of VR HMD's (Head Mounted Devices i.e. headsets) is coming out of United States, Taiwan and Singapore, it is widely expected that the next generation of VR devices, and most progress will come out of China. There are over a hundred headset manufacturers, and while some have doubtful track record – there are many manufacturers that see VR as the ticked for their "place in the Sun". One such vendor is PIMAX. Thanks to David from Gearbest VR equipment etail store, we learned of an exciting headset coming out of Shenzhen, China. PIMAX 4K UHD Virtual Reality Headset could the the
Microsoft Windows 10 Holographic Edition to Run on 2017 PCs
Following the troublesome release of Windows 10 Anniversary Edition, which "bricked" tens of millions of webcams around the world, Microsoft is turning its attention to "Windows 10 Holographic Edition". Unlike the HoloLens stand-alone computer, Holographic Edition will run on PCs, targeting discrete VR HMDs such as HTC Vive, Oculus Rift and a numerous upcoming headsets based on OSVR and Intel's own Project Alloy. However, we would not advise you to expect rosy marketing statements to come true, promising Windows 10 Holographic Edition to run: "on an inexpensive and tiny Intel NUC at 90 fps." Because that 'tiny and inexpensive' NUC is a 600 dollar Skylake-S based NUC6i7KYK, and secondly –
Intel Doubles Down on VR and AR, Calls it Merged Reality
Slowly but certainly, Intel is unveiling its "Merged Reality" strategy. About a year and a half ago, Intel invested in Razer bringing the valuation of the said company to north of $1 billion. Exactly a year ago, that investment expanded with the launch of Open Source Virtual Reality or OSVR. Today, Razer is bringing Hacker Development Kit 2.0 to the market, and Intel announced their first lovechild codenamed Project Alloy. Project Alloy is best described as a VR Headset in the class of HTC Vive or Oculus Rift, but with the ability to "cut the VR cord", since it features mobile processing similar to the
New Samsung GearVR 3 Arrives This Week
One of most widely used VR HMDs (Head Mounted Device) on the market is GearVR, a love child of collaboration between Facebook i.e. Oculus and Samsung. The device is growing in popularity as there are over 1.2 million active monthly users. Not to be outdone by swathes of competition – such as Chinese Baofeng Mojiong – Samsung is updating its GearVR with a third generation product. Targeting Galaxy Note 7 and Galaxy S7 / S7 Edge users, GearVR brings USB-C connector as well as improved controller. Under the majestically simple name "SM-R323", third generation GearVR will be bundled with Galaxy Note 7 in some markets, while the most
AMD Radeon Pro SSG Could Support 4TB Memory
In a move that was perhaps the most important announcement of Siggraph, Radeon Technologies Group presented the Radeon Pro SSG card, perhaps the most innovative concept to have come out of the GPU world of in quite some time. SSG stands for "Solid State Graphics", and in its prototype version consists out of a Polaris 10 graphics processor, commonly known as Radeon RX 480 with 8GB of memory, a PLX PCIe bridge and two M.2 NVMe slots with two 512GB SSD drives, which might come to market on their own, probably branded as Radeon R9 memory. The way how Radeon Pro SSG works is quite ingenious. When AMD
Is Everest VR the Most Immersive VR Experience?
In just a few weeks, the world of Virtual Reality Experiences (VRX) is going to get super immersive add-on. The first fully featured, 1.5 to 2 hour experience is coming to HTC Vive through Steam, Valve's online store and undoubtedly world's #1 e-tailer for games. Everest VR is being touted as one of key experiences which should drive the adoption of VR into mainstream. Together with The Climb for Oculus Rift, it probably represents the path forward for VRX. If we are to describe VRX in short, it would be a "cinematic or animated experience you can play", but it is not a conventional game
Announcing Winners of ASRock & Killer Networks Giveaway
On behalf of Rivet Networks, ASRock USA and VR World, we wish to congratulate the following winners of Killer Technology-enabled motherboards: ASRock Fatal1ty Z170 Gaming K6 – Michael Kristensen ASRock Fatal1ty B150 Gaming K4 – Derrick Potter ASRock Fatal1ty 990FX Killer 3.1 – Miekske Dingens The winners have 48 hours to contact us with their shipping info, otherwise their awards will be passed on to one of three reserve winners. You can contact us through Facebook, Twitter or at the bottom of this post. Please do not put any personal details if you decide to contact us through the comments section – we'll make alternative arrangements. Once more, congratulations and
Graphene Batteries Enable Future; Magic Leap and other AR/VR Players
Third week of July saw a major technology breakthrough that will probably affect the shape of the world we currently live in. While the previous attempts at creating a non-lithium based battery pack did not result in a major volume, the tide is turning. Turnigy Graphene brought the technology to market for DIY and enthusiast markets (battery packs for drones, model planes, RC cars etc.), and now Chinese company Dongxu Optoelectronics launched a consumer version of the graphene battery technology. Named G-King Battery Pack, Dongxu is launching a battery pack for mobile phones and tablets promising record quick recharges. While the product has somewhat modest capacity of 4,800 mAh (Thermaltake's
Three Interesting VR Games No One is Talking About
With the ongoing rollout of VR headsets over the course of 2016, we've begun to see dozens of games either released to the public or demo'd for release in the near future. In some cases, these games are essentially little puzzles or creative experiences designed to test out the fundamentals of VR; in others, they're full-fledged, action-packed games akin to what we expect on major consoles. And inevitably, many of the more ambitious games have emerged at the forefront of our discussions about VR games. But with so many titles already announced and revealed, there are some very interesting games being overlooked. Here are three
New AR App Elevates Shopping Experience
The connection between e-commerce and smartphones is a blossoming relationship. With desktop computers no longer the only option available to browse and shop online, this marriage of technology and convenience is one that's likely to be rock solid for generations to come. However, this relationship should be prepared to add a new addition into their lives: Augmented Reality i.e. AR. this technology is also beginning to be marketed as Mixed Reality or MxR (blame Magic Leap for that one). Online furniture retailer Wayfair just released a brand new app called WayfairView. For use on smartphones and tablets, the app can project a lifelike 3D image of
Not all GeForce GTX 1070 and 1080 are VR Ready
When Nvidia launched the Pascal-based GeForce GTX 1070 and 1080, the company touted Virtual Reality as one of key pillars of the "Power of 10" line-up. As the time moves on, we're starting to see more custom models that offer its potential buyers more bang for buck. Sadly, according to reports from Nvidia's official forums, Reddit and our colleagues at Tom's Hardware – it looks like prospective owners of GeForce GTX 1070/1080 might experience issues when connecting the card to HTC Vive. The GeForce GTX 1070 and GTX 1080 both come with identical display configuration – three DisplayPort 1.4, single HDMI 2.0b and DVI ports. If you use
Nvidia Pascal Based Titan 50% Faster than GeForce GTX 1080?
While Nvidia will pull out all the guns to fight the AMD Radeon RX 480, releasing GeForce GTX 1060 as early as July 7th – our focus is slowly turning towards the real big gun of Pascal-based GeForce line-up. If our sources are correct, GP100 and GP102 were essentially the same chips, with the difference being memory and bus interface on the GP102 and PCI Express for the GP100. Feature set on both chips is the same, and there are no surprises. We held the "Tesla P100 for PCI Express-based Servers" board in our hands just a few weeks ago, and just a few days ago, we managed


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The 2013 budget request for the Department of Energy includes measures to reduce the cost of solar, shed excess square footage, and fund energy research.
A review of President Obama's $27.2 billion fiscal year 2013 budget request for the Energy Department reveals an emphasis on critical investments in clean energy technologies.
The budget lays out broad support for funding research that leads to the development, deployment, and production of clean energy technologies, in addition to remedying past environmental issues left over from the Manhattan Project and the Cold War.
The President's FY 2013 budget request includes specific goals such as:
"The United States is competing in a global race for the clean energy jobs of the future," says DOE Secretary Steven Chu. "The choice we face as a nation is simple: do we want the clean energy technologies of tomorrow to be invented in America by American innovators, made by American workers, and sold around the world, or do we want to concede those jobs to our competitors? This budget request includes responsible investments in an American economy that is built to last."
Whether you need to heat, cool, power, sweep, lift or reach, Sunbelt Rentals has the equipment and unlimited solutions to solve any challenge. 24/7. Nationwide.


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Download apps, toolboxes, and other File Exchange content using Add-On Explorer in MATLAB.
Join the 15-year community celebration.
Play games and win prizes!
Be the first to rate this file! 4 Downloads (last 30 days) File Size: 1.72 KB File ID: #24318 Version: 1.0
Rayleigh Fading Channel Generation
01 Jun 2009
This .m file generates rayleigh channel model based on Inverse DFT method.


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Is this a Mediterranean restaurant?
Does this restaurant specialize in Yunnan style food?
Does this restaurant offer outdoor seating?
Is this restaurant wheelchair accessible?
Is this a French restaurant?
Is this restaurant good for bar scene?
Is this a Latin restaurant?
Is this a seafood restaurant?
Does this restaurant offer takeout or food to go?
Is this restaurant good for large groups?
Thanks for helping!
Excellent service and food, the quality and taste is very upscale with fair prices. Strongly recommend for a romantic dinner or a relaxing meeting.
Hello Rick,
Thank you for your review, we are glad that you enjoyed our food and service. We hope to see you back soon!
Been a few times, sometimes good, sometimes horrible. Staff is always different and service is hit or miss.
We stayed at hotel Alta and ate at la Luz often. The same meal eaten on different days ranged from lovely to sub par. My daughter ordered Chefs Sea Bass and the fish was delicious. Covered with shrimp and a richly flavoured sauce....she ordered it several days later and no shrimp,no sauce, dry fish. Wait staff, however, were consistently exceptional
We've eaten at this beautiful restaurant in the Alta hotel several times for both breakfast and dinner. Most of these meals have been among the best eaten anywhere. Unfortunately, our last dinner experience did not quite live up to previous visits.
We ate with our adult sons and dinner started off well enough. As other reviewers have mentioned, service is...
Lovely restaurant! Started with wine and tapas. For dinner we had the sea bass and tenderloin. Both meals and service were excellent! Wait staff super nice and accommodating. Absolutely beautiful view. The hotel that the restaurant resides in is also a gem. Check it out!
This is more like a French fusion cuisine restaurant with very fancy decoration in a hotel.
Food is great, prices are fine.
What we didn't like was all the stairs we had to step to get to the restaurant.
Besides that, this is the most romantic restaurant in my opinion.
We enjoyed both a romantic dinner and a quiet breakfast at La Luz while staying at the Alta Hotel. Stylish decor, remarkable lighting features, overlooking a beautiful, grand Guanacaste tree...looking forward to planning a large dinner party under this venerable old tree one day!
LOVED the avocado and hearts of palm salad and my entrée, a humble chicken dish with...
Staying at the Hotel Alta las Palomas, we had dinner and breakfast at this restaurant. The food was very good, especially at dinner with proper size portions (i.e. not massive US sizes!), presented nicely and tasted great. The only issue was the waiter service. Slow to take orders, very slow for drinks to arrive and never asked if we wanted...
This restaurant is located in a small luxury hotel over looking San Jose(?). Our tour group dined here for our final meal. The ambiance and view of the city out the large windows was wonderful.
The food and service were out standing. If you are in a rush it might not be a good choice though.
Well worth the trek...
The food was some of the best we had in Costa Rica. The ambiance and view can't be beat. We had tapas and wine over the coffee table by the fireplace followed by an awesome dinner, then we woke up at the hotel and had breakfast here as well. It was our last meal in Costa Rica before the plane...
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THIS IS A DIRECTORY PAGE. Britannica does not currently have an article on this topic.
Learn about this topic in these articles:
principles of criminal law
...kind of voluntary human behaviour. Movements made in an epileptic seizure are not acts, nor are movements made by a somnambulist before awakening, even if they result in the death of another person. Criminal liability for the result also requires that the harm done must have been caused by the accused. The test of causal relationship between conduct and result is that the event would not have...


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by Christopher Chantrill
Turner: The Iraq Election in Verse | 01/31/05
Frederick Turner thinks that the Iraq election should be ...
Iraq Election: Handing Out Medals | 01/31/05
After the spectacular turnout in Sunday´s Iraq election, it´s time to name names, as ...
Steyn: Four More Wars | 01/28/05
While many conservatives are tiring of the War on Terror, Mark Steyn rings down Full ...
More on the New England Vapors | 01/27/05
While Larry Summers completes his re-education course somewhere in New England, George ...
Spengler: Americans Can't Do Tragedy | 01/27/05
You can´t put one over on Spengler. He´s right there in the front rank complaining ...
Forming and Breaking Relationships Easily | 01/26/05
No, this is not about divorce. It is about the nature of social relationships generally. ...
Ken Mehlman Lays Down a Marker | 01/25/05
You can´t make it any clearer than this. Ken Mehlman ...
Ankle Biters Get Teeth into Inaugural Speech | 01/25/05
Loyal liberal E.J. Dionne ...
Brit Bobbies Lost Key to Gun Cupboard | 01/23/05
Don´t cancel your British vaction, it was nearly a century ago when London bobbies ...
Brit Pundit Says Don't Count US Out | 01/21/05
A writer from the London Times ...
Bush Supporters Wonder What It Means | 01/21/05
Reagan/Bush speechwriter Peggy Noonan worries that the President has ...
Inaugural Sour Grapes | 01/20/05
For the last couple of weeks Democrats have been complaining about the cost of the Bush ...
Brits on Bush: It ain't over yet | 01/20/05
A Brit at the London Times does a think piece on the Bush inauguration. The U.S. ...
Spengler: Two Cheers for Hypocrisy | 01/19/05
Spengler´s been taking the odd week off over the holiday season, enraging his world-wide ...
Scorched Earth Won't Work For Democrats | 01/18/05
David Brooks advises Democrats ...
President Bush: "I Assume I'm Right" | 01/18/05
When will the Democrats stop misunderestimating President Bush? Here is the ...
Uncle Ted, The Face of the Democrats | 01/17/05
Boston columnist Don Feder takes apart Ted Kennedy and the Democrats. This is a good ...
The Political Math for Social Security Reform | 01/17/05
Fred Barnes discards the conventional wisdom and tries to figure out how President Bush ...
Sshh! The Deficit is Shrinking! | 01/14/05
While we are all attentively watching Dan Rather´s rather outré retirement ...
Peggy Noonan at Her Finest | 01/13/05
Peggy Noonanwho used to write Dan Rather´s radio ...
Steyn: Brits are to Blame for Black Homophobia? | 01/11/05
No, Mark Steyn hasn´t gone bonkers. But the earnest Decca Aitkenhead in The ...
Steyn: Last Week's Boxer Rebellion Means Dems are Losers | 01/10/05
Speaking as a Canadian and resumably entitled to vote in California, Mark Steyn ...
NYT Trendspotters: Religion is Reviving Worldwide! | 01/10/05
All the Upper West Side is agog this week after the New York Times´s Laurie ...
What Happened to the Reasonable Man? | 01/07/05
This is a muddy article about ...
What Should Democrats Do? | 01/06/05
Now Peggy Noonan is giving them advice. The Bush administration has stood for ...
Steyn: Message from Col. Shrapnell | 01/05/05
The men of Battery M send up a barrage of shot and shell against the ...
Spengler: Neocon Gelernter Writes "Utter and Complete Rubbish" | 01/04/05
David Gelernter in Commentary thinks the Puritanism of the founders shaded into modern ...
CEO Deepthink from Drucker | 01/03/05
What is the ...
Steyn: Americans Are Different | 01/02/05
Americans are different; they work more than kindler, gentler Euros. For instance, Mark ...
[W]hen I asked a liberal longtime editor I know with a mainstream [publishing] house for a candid, shorthand version of the assumptions she and her colleagues make about conservatives, she didn't hesitate. Racist, sexist, homophobic, anti-choice fascists, she offered, smiling but meaning it.
Harry Stein, I Can't Believe I'm Sitting Next to a Republican
[T]he way to achieve a system of determining admission to the public schools on a nonracial basis,
Brown II, 349 U. S., at 300–301, is to stop assigning students on a racial basis. The way to stop
discrimination on the basis of race is to stop discriminating on the basis of race.
Roberts, C.J., Parents Involved in Community Schools vs. Seattle School District
[T]he Liberal, and still more the subspecies Radical... more than any other in these latter days seems under the impression that so long as he has a good end in view he is warranted in exercising over men all the coercion he is able[.]
Herbert Spencer, The Man Versus the State
[To make] of each individual member of the army a soldier who, in character, capability, and knowledge, is self-reliant, self-confident, dedicated, and joyful in taking responsibility [verantwortungsfreudig] as a man and a soldier. — Gen. Hans von Seeckt
MacGregor Knox, Williamson Murray, ed., The dynamics of military revolution, 1300-2050
[The Axial Age] highlights the conception of a responsible self... [that] promise[s] man for the first time that he can understand the fundamental structure of reality and through salvation participate actively in it.
Robert N Bellah, "Religious Evolution", American Sociological Review, Vol. 29, No. 3.
[In the] higher Christian churches... they saunter through the liturgy like Mohawks along a string of scaffolding who have long since forgotten their danger. If God were to blast such a service to bits, the congregation would be, I believe, genuinely shocked. But in the low churches you expect it every minute.
Annie Dillard, Holy the Firm
[Every] sacrifice is an act of impurity that pays for a prior act of greater impurity... without its participants having to suffer the full consequences incurred by its predecessor. The punishment is commuted in a process that strangely combines and finesses the deep contradiction between justice and mercy.
Frederick Turner, Beauty: The Value of Values
Within Pentecostalism the injurious hierarchies of the wider world are abrogated and replaced by a single hierarchy of faith, grace, and the empowerments of the spirit... where groups gather on rafts to take them through the turbulence of the great journey from extensive rural networks to the mega-city and the nuclear family...
David Martin, On Secularization
What distinguishes true Conservatism from the rest, and from the Blair project, is the belief in more personal freedom and more market freedom, along with less state intervention... The true Third Way is the Holy Grail of Tory politics today - compassion and community without compulsion.
Minette Marrin, The Daily Telegraph
These emerge out of long-standing moral notions of freedom, benevolence, and the affirmation of ordinary life... I have been sketching a schematic map... [of] the moral sources [of these notions]... the original theistic grounding for these standards... a naturalism of disengaged reason, which in our day takes scientistic forms, and a third family of views which finds its sources in Romantic expressivism, or in one of the modernist successor visions.
Charles Taylor, Sources of the Self
There was nothing new about the Frankish drive to the east... [let] us recall that the continuance of their rule depended upon regular, successful, predatory warfare.
Richard Fletcher, The Barbarian Conversion
The Union publishes an exact return of the amount of its taxes; I can get copies of the budgets of the four and twenty component states; but who can tell me what the citizens spend in the administration of county and township?
Alexis de Tocqueville, Democracy in America
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©2007 Christopher Chantrill