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California Court of Appeals, First District, Second Division
May 30, 2013
MITCHELL SIMS et al., Plaintiffs and Respondents,v.DEPARTMENT OF CORRECTIONS AND REHABILITATION et al., Defendants and Appellants.
Marin County Super. Ct. No. CIV 1004019, Honorable Faye D'Opal, Judge.
Attorneys for Appellants: Kamala Harris, Attorney General Jonathan Wolff, Sr. Asst. Atty. General Thomas S. Patterson, Super. Deputy A.G. Mitchell J. Quinn, Deputy Attorney General.
Attorneys for Respondents: Arnold & Porter LLP Steven L. Mayer Julian Y. Waldo Ginamarie Caya.
Kline, P.J.
The question presented by this appeal is whether regulations promulgated by the California Department of Corrections and Rehabilitation (CDCR or agency) regarding the manner in which the death penalty is carried out substantially comply with the California Administrative Procedure Act (APA) (Gov. Code, § 11340 et seq.).[1] Finding that the CDCR "substantially failed to comply" with mandatory procedural requirements of the APA, the trial court invalidated the regulations in their entirety. (§ 11350, subd. (a).) We shall affirm the judgment.
California law, which provides for capital punishment, offers persons sentenced to death a choice between execution by lethal injection or by lethal gas. (Pen. Code, § 3604, subd. (b).) The responsibility to develop procedures for administering both forms of execution lies with the CDCR. (Pen. Code, § 3604, subd. (a).)
Until 2006, the CDCR's standards for conducting lethal injections were set forth in a procedural manual known as Operational Procedure No. 0-770 (OP 770). In December of that year a federal court ruled that the protocol prescribed by OP 770 violated the Eighth Amendment's prohibition against cruel and unusual punishment. (Morales v. Tilton (N.D.Cal. 2006) 465 F.Supp.2d 972.) In order to cure this deficiency, the CDCR substantially revised OP 770 on May 15, 2007.
Later that year, condemned inmates filed a complaint in the Marin County Superior Court contending that any procedure employed to carry out the death penalty must be adopted through the regulatory approval process prescribed by the APA, rather than as an agency operational procedure. The superior court agreed. Finding that the revised version of OP 770 constituted an "underground regulation, "[2] the court enjoined the CDCR from executing condemned inmates by lethal injection "unless and until" the applicable regulations were enacted in "full compliance with the Administrative Procedure Act." The CDCR appealed and, in 2008, Division Five of this court affirmed the trial court's decision. (Morales v. California Dept. of Corrections & Rehabilitation (2008) 168 Cal.App.4th 729.) In response to that ruling, the CDCR undertook to promulgate a lethal injection protocol through the APA rulemaking process.[3]
The process commenced on May 1, 2009, when the CDCR submitted to the Office of Administrative Law (OAL), and made available to the public upon request, a draft regulation[4] and notice of proposed regulatory action, as well as an "initial statement of reasons" (ISOR) explaining the rationale of the proposed regulations. (§ 11346.2, subds. (a), (b).) The agency also posted notice of the proposed rulemaking in all of the state's prisons, including multiple postings in San Quentin Prison, where executions are carried out and condemned male prisoners are housed. During the initial 60-day period of public comment and two subsequent periods additionally allowed, the CDCR received a total of 29, 416 letters, facsimiles and emails from the public. At a six-hour public hearing in Sacramento on June 30, 2009, 102 people expressed their views on the proposed regulations.
On January 4, 2010, the CDCR provided public notice of modifications to the proposed regulation in response to the written comments it had received, and set a 15-day comment period on the modifications. On April 29 of that year, the CDCR submitted the new regulations for review by the OAL. On June 8, the OAL disapproved the regulations, finding, among other things, that CDCR had failed to comply with the clarity, consistency and necessity standards of the APA (§§ 11342.2, 11342.580, 11349) and several APA procedural requirements. On June 11, the CDCR published another notice to the public addressing the issues the OAL had raised, allowing a 15-day comment period. On July 6, the CDCR resubmitted modified regulations, which were approved by the OAL on July 30. The regulations, now set forth in California Code of Regulations, title 15, sections 3349 through 3349.4.6, took effect 30 days later, on August 29, 2010.
Under the APA, "no regulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute." (§ 11342.2.) A regulation "may be declared to be invalid for a substantial failure to comply with [the APA]" or if the determination of the promulgating agency that it is reasonably necessary to effectuate the purpose of the statute "is not supported by substantial evidence." (§ 11350, subds. (a), (b)(1).)[5]
On August 2, 2010, respondent Mitchell Sims filed a complaint seeking declarative and injunctive relief.[6] The first cause of action alleged that several significant provisions of the regulations approved by the OAL "are entirely unnecessary to effectuate the purpose of Penal Code section 3604[, subdivision] (a)[7] and impose undue burdens on those effected by the regulations." The gist of the claim is that the use of one of the three drugs in the three-drug regulatory formula—pancuronium bromide, a neuromuscular agent that paralyzes the body's voluntary muscles—"is unnecessary and dangerous, and serves only to increase the risk that the condemned person will suffer excruciating pain" and "the rulemaking file makes clear that there are no countervailing benefits or compelling reasons to use pancuronium bromide as part of the execution process."
After finding that the rulemaking file contained substantial evidence favorable to the use of pancuroniam bromide, or confirmed the experience of other states that proper application of the same three-drug formula authorized by the regulations "will result in a rapid death of the inmate without undue pain or suffering, " the trial court, on December 19, 2011, denied respondents' motion for summary judgment on their first cause of action alleging no substantial evidence showing the use of pancuronium bromide "reasonably necessary" to effectuate the purpose of the proposed regulations.
However, in the same ruling, the trial court granted respondents' motion for summary judgment with respect to the second cause of action and invalidated the regulations, based upon its finding that undisputed evidence shows that the CDCR "substantial[ly] fail[ed] to comply with the mandatory procedural requirements of the Administrative Procedure Act" when it adopted the regulations, in violation of section 11350, subdivision (a).
The CDCR admitted below, as it does here, that it did not actually comply with many of the requirements of the APA that respondents claim constitute a substantial failure to comply. Specifically, the CDCR admitted it (1) failed to explain in the ISOR and "final statement of reasons" (FSOR) (§ 11346.9) its consideration and rejection of alternatives to the three-drug protocol, as required by sections 11346.2, subdivision (b)(3), and 11346.9, subdivision (a)(3), and falsely represented that it relied on the Supreme Court decision in Baze, supra, 553 U.S. 35, which validated a three-drug lethal injection method of capital punishment but had not been decided when the CDCR rejected alternatives to that method; (2) failed to make the complete rulemaking file available to the public for inspection as of the date the notice of proposed action was published (§ 11347.3), and delayed making the rulemaking file available until June 11, 2009, six weeks after publication of the notice of proposed action, when fewer than three weeks remained in the comment period; (3) failed to identify the latest version of OP 770 as the primary basis of the proposed lethal injection protocol; (4) failed to summarize and respond to about two dozen written comments specifically directed at the agency's proposed action explaining whether and how the proposed regulations had been changed to accommodate each objection or recommendation, as required by section 11346.9, subdivision (a)(3); and (5) included irrelevant information in the rulemaking file made available to the public.
After respondents voluntarily dismissed the first cause of action, the judgment invalidating the regulations for substantial failure to comply with the requirements of the APA was entered on February 21, 2012. The court permanently enjoined the CDCR from administering executions by lethal injection until new regulations were promulgated in compliance with the APA, and also from administering executions by lethal gas until regulations applicable to that method of execution were properly adopted. The CDCR was also permanently enjoined from administering the execution of any condemned female inmate until applicable regulations were promulgated that complied with the requirements of the APA.
The CDCR filed a timely notice of appeal on April 26, 2012.
A regulation "may be declared to be invalid for a substantial failure to comply with [the APA]." (§ 11350, subd. (a), italics added.)
The trial court's 17- page final ruling granting summary judgment identified and discussed its reasons for concluding that, "collectively, if not singly, " the deficiencies in the CDCR's rulemaking process "constitute a substantial failure... to comply with procedures mandated by the Administrative Procedures Act, " requiring invalidation of the regulations regarding lethal injection in their entirety.
The deficiencies in the CDCR's rulemaking process the court believed most clearly "substantial, " and sufficient in and of themselves to warrant invalidation of the proposed regulation in its entirety, relate to APA requirements that agencies proposing regulations timely provide the interested public certain types of relevant information. The court found that the ISOR and FSOR failed to describe alternatives to the proposed three-drug protocol, failed to provide a sufficient rationale for rejecting those alternatives, and failed to explain, with supporting documentation, why a one-drug alternative would not be as effective or better than the adopted three-drug procedure, as required by the APA. (§§ 11346.2, subd. (b)(3)(A) and 11346.9, subd. (a)(4).) The ISOR and FSOR both stated that the CDCR "considered alternatives to the existing three-chemical process, including a one-chemical process" and was "guided by the United States Supreme Court's decision in [Baze, supra, ] 553 U.S. 35, " which upheld Kentucky's use of a three-chemical process. However, as the ruling explains and the CDCR concedes, the agency's consideration of alternatives was not guided by the decision in Baze because the three-drug protocol was decided upon by Governor Schwarzenegger in May 2007, well before the issuance of Baze, and the issue was not revisited after Baze was decided.[8]
The failure to forthrightly discuss alternatives to the three-drug method was particularly significant, the court stated, because many who commented upon the proposed regulations had claimed that use of pancuronium bromide was unnecessary, dangerous, and created a risk of excruciating pain, or had raised the issue of a barbiturate-only protocol; the CDCR had taken the position in a federal lawsuit that a single-drug formula consisting of five grams of sodium thiopental was sufficient to cause death in a constitutional manner; and the CDCR's expert had recommended adoption of a single-drug formula.
The court also found the CDCR substantially failed to make the complete rulemaking file available for public inspection in the timely manner required by the APA. (§ 11347.3, subd. (a).) The file was not made available to the public until June 11, 2009, six weeks after publication of the notice of proposed action on May 1, 2009, and less than three weeks before the end of the public comment period on June 30, 2009. Additionally, the rulemaking file did not contain several significant documents the CDCR had relied upon in drafting the proposed regulations, which were therefore required by the APA to be included in the file.[9] (§ 11347.3, subd. (b).)
The trial court's determination that the CDCR substantially failed to comply with the APA also rested on the agency's failure to respond to public comments in the manner and as fully as the APA requires. The APA provides that an agency's FSOR "shall include... [¶]... [a] summary of each objection or recommendation made regarding the specific adoption... proposed, together with an explanation of how the proposed action has been changed to accommodate each objection or recommendation, or the reasons for making no change." (§ 11346.9, subd. (a)(3).)[10] The court's ruling states that the CDCR received over 29, 400 written comments on the proposed regulations and neither responded to nor summarized approximately two dozen comments. The court concluded that despite the large number of comments the CDCR properly addressed, its failure to respond to or summarize approximately 24 comments could not be treated as merely a "technical defect." "By not summarizing and responding to these comments, " the court stated, "the Department did not give substance to the central APA requirement that all interested persons be afforded a meaningful chance to have their objections heard and to inform the rulemaker's decision." The court added that some of the responses to comments the CDCR did make "are incomplete, incorrect, or inadequate, " noting, as an example, that about 15 commentators objecting to the use of pancuronium bromide did so on the basis of "various medical and humanitarian grounds, " yet the CDCR answered by relying on the recent decision in Baze v. Rees, supra, 553 U.S. 35, which did not relate to those concerns, and erroneously indicated the three-chemical protocol had been selected on the basis of the Supreme Court's analysis in Baze.
Concluding that the foregoing deficiencies, all of which were supported by "undisputed evidence, " "infect[ed] the entire regulatory scheme" prescribed by the APA, and "undermined meaningful public participation in the rulemaking process, " the court concluded it was necessary to declare the proposed lethal injection protocol, "as a whole, " invalid.
The trial court found the CDCR also failed to comply with the APA in other respects, but these deficiencies only justified the invalidation of individual regulations, or the addition of information improperly omitted from the regulation (such as the fiscal impact of the regulation), not invalidation of the regulations in their entirety. Thus the court found the CDCR violated the APA requirement that it explain why a regulatory provision "is reasonably necessary to carry out the purpose and address the problem for which it was proposed" (§ 11346.2, subd. (b)(1)), because the CDCR provided no explanation why certain procedures were required to take place during the five days before execution. For example, the ISOR failed to explain why it was necessary for unit staff to monitor the inmate and to complete documentation every 15 minutes during the five-day period; "why all personal property must be removed from the inmate's cell"; or "why inmates must be bound with waist restraints during visits."
The court also found that "some" of the regulations did not comply with the APA-mandated standard of "clarity, " which requires that regulations be written or displayed so that their meaning "will be easily understood by those persons directly affected by them." (§ 11349, subd. (c).) By way of example, the court cited a regulation related to the warden's review of information bearing on the sanity of a condemned inmate. In the court's view, the regulation requires the inmate's counsel to submit such information no later than seven days prior to the scheduled execution, whereas the FSOR indicates such information can be offered to and received by the warden "at any time" prior to execution, thereby creating an ambiguity rendering the regulation invalid. The court also found that the term "reputable citizen, " used in a regulation restricting the number of witnesses to an execution, "may have more than one meaning" and was, therefore, also ambiguous.
The trial court also agreed with respondents that the CDCR's notice of proposed adoption of regulation failed to estimate the additional costs or savings it would incur in reasonable compliance with the proposed regulation, as required by the APA. (§ 11346.5, subd. (a)(6).) In making this finding, the court rejected the CDCR's contention that it was not required to provide such estimates because " 'the costs and fiscal impacts of lethal-injection executions are caused by the fact that the Penal Code, not a regulation, mandates this type of execution.' "
Lastly, although the court ruled that "[t]he all-male plaintiffs do not have standing to raise the [e]qual [p]rotection challenges on behalf of condemned female inmates, because they do not claim the disparate treatment they hypothesize, " it nevertheless permanently enjoined the CDCR from executing any condemned female inmate, or executing any inmate under sentence of death by lethal gas, until applicable regulations were properly promulgated.
"On appeal we exercise 'an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.' " (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201, quoting Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.) As respondents correctly point out, where, as here, neither party claims there are any triable issues of material fact, the appellate court independently interprets and applies the law to undisputed facts. That is, "[i]n the context of a motion for summary judgment, questions of law include whether a triable issue of material fact exists and whether the moving party is entitled to judgment as a matter of law." (Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1492, citing Code Civ. Proc., § 437c, subds. (c) & (f); see Certain Underwriters of Lloyd's of London v. Superior Court (2001) 24 Cal.4th 945, 972.)
We also agree with respondents that courts reviewing regulations for compliance with the APA owe no deference to the promulgating agency's opinion that it complied with the prescriptions of the APA. The CDCR does not contest this point. As we noted in California Advocates for Nursing Home Reform v. Bonta (2003) 106 Cal.App.4th 498, " 'Agencies are not normally delegated power to determine authoritatively whether they complied with generally applicable rule-making procedures, ... As a result, courts may usually determine the lawfulness of agencies' compliance with those rule-making procedures entirely de novo, simply substituting their judgment on that question for that of the agencies.' " (Id. at p. 506, quoting Bonfield, State Administrative Rule Making (1986) § 9.2.12, p. 582.) Additionally, a court reviewing regulations for compliance with the APA "shall not" consider the approval of the regulations by OAL "in any action for declaratory relief." (§ 11350, subd. (c).)
The CDCR contends: (1) there was no substantial failure to comply with the APA because the high level of public participation in the rulemaking process rendered harmless its failure to actually comply with certain provisions of the APA; (2) the trial court lacked authority to review the regulations for clarity; (3) the court lacked authority to review the regulations for "necessity"; (4) the absence of a fiscal impact report does not violate the APA; and (5) the court erred in enjoining the execution of condemned female inmates and executions by means of lethal gas.
As we have said, the judgment rests on a provision of the APA stating that a "regulation... may be declared to be invalid for a substantial failure to comply with this chapter." (§ 11350, subd. (a), italics added.) The parties cite no case, and we are aware of none, defining "substantial failure" to comply with the APA or a comparable statute. The two federal cases the CDCR relies upon for application of the harmless error rule, United States v. Bearden (5th Cir. 1981) 659 F.2d 590 (Bearden) and United States v. Martinez (9th Cir. 1970) 436 F.2d 12 (Martinez), do not involve the APA or comparable statute, but they do pertain to a statutory scheme that, like the APA, is enforced upon a court's determination "of substantial failure to comply with the provisions" of the measure. (28 U.S.C. § 1867, subds. (a), (b), (c).) Bearden and Martinez both interpret and apply provisions of the federal Jury Selection and Service Act of 1968, the chief purposes of which are "to ensure that potential grand and petit jurors are selected at random from a representative cross section of the community and that all qualified citizens have the opportunity to be considered for service." (Bearden, at p. 593, citing 28 U.S.C.A. § 1861.) The finding in both cases was that the failures of responsible government officials to comply with the federal act were not "substantial" because they did not frustrate these two important general principles. As stated in Bearden, "[a] substantial violation of the Act will be found only when these principles are frustrated. Mere 'technical' deviations from the Act or even a number of them are insufficient. [Citations.] [¶] The same analysis is applied for claims alleging a failure to comply with the Local Plan. The court must determine whether noncompliance with the Plan has resulted in a substantial violation of the Act and its underlying principles. [Citations.] The mere claim the Plan has been violated is insufficient, absent a further showing the Act itself and its goals have been frustrated." (Bearden, at p. 601, italics added.)[11]
The reasoning of Bearden and Martinez is consistent with the concept of substantial compliance articulated by our Supreme Court more than 50 years ago in Stasher v. Hager-Haldeman (1962) 58 Cal.2d 23 (Stasher), which is still authoritative. (See, e.g., North Pacifica LLC v. California Coastal Comm. (2008) 166 Cal.App.4th 1416, 1431-1432.) As stated in Stasher, "[s]ubstantial compliance, as the phrase is used in the decisions, means actual compliance in respect to the substance essential to every reasonable objective of the statute. But when there is such actual compliance as to all matters of substance then mere technical imperfections of form... should not be given the stature of noncompliance...." (Stasher, at p. 29, first italics added by Stasher court, second added by this court.) Substantial compliance, an affirmative proposition, is the counterpart, or obverse, of the substantial failure to comply, which negatively expresses the same idea. Following Stasher, it is therefore proper to say that noncompliance is insubstantial, or "harmless, " only where it does not compromise any "reasonable objective" of the APA.
The CDCR argues that its failure to "fully comply with every technical requirement" of the APA constitutes harmless error because it did not prevent the agency from achieving what the CDCR considers the overarching purpose of the APA: "providing an opportunity for those affected by the regulation to provide input about it." Emphasizing the "wealth of public participation" the agency afforded, the CDCR points out that it responded to 29, 416 separate pieces of correspondence submitted by groups and individuals interested in the proposed lethal injection protocol, posted notice of the regulatory action in all 33 California prisons, and held a lengthy hearing at which 102 people provided input.
The CDCR's view of the purpose of the APA is far too limited and simplistic. It is of course true, as the CDCR repeatedly reminds us, that the APA is designed "to provide a procedure whereby people to be affected may be heard on the merits of the proposed rules" (Armistead v. State Personnel Board (1978) 22 Cal.3d 198, 204), and to ensure "meaningful public participation in the adoption of administrative regulations by state agencies. (California Optometric Assn. v. Lackner (1976) 60 Cal.App.3d 500, 506; Voss v. Superior Court (1996) 46 Cal.App.4th 900, 908-909.) But affected people cannot be thought to have been heard "on the merits, " and public participation cannot be considered "meaningful, " simply because large numbers of interested people were provided an opportunity to be heard. The public participation contemplated by the APA is not a numbers game. A hearing is "on the merits" and "meaningful" only if the interested public has timely received all available information that is relevant to the proposed regulations, accurate, and as complete as reasonably possible. The public that participated in the CDCR's rulemaking process was not so fully informed.
The trial court invalidated the lethal injection protocol in its entirety primarily due to the consequences of the CDCR's noncompliance with three provisions of the APA: section 11346.2, subdivision (b), which pertains to the content of the ISOR; section 11346.9, subdivision (a), which pertains to the content of the FSOR; and section 11347.3, which defines the rulemaking file required to be published in the California Regulatory Notice Register and made available to the interested public. As we have said, the CDCR violated these provisions by failing to set forth (in both the ISOR and FSOR) alternatives to the proposed three-drug lethal injection protocol; by failing to provide a rationale for rejecting those alternatives; by failing to explain, with supporting documentation, why the three-drug alternative was superior to the use of a single drug; by falsely representing that it selected the three-drug alternative on the basis of the Supreme Court decision in Baze, supra, 553 U.S. 35; by failing to include documents required to be disclosed in its rulemaking file; and by failing to make the rulemaking file available for public inspection until six weeks after it was required to do so, when less than three weeks remained in the period within which public comment was allowed. The requirements violated by the foregoing conduct are certainly not, as the CDCR says, merely "technical."
The "enormous amount of public participation" for which the CDCR takes credit—which was undoubtedly primarily attributable to the high level of public interest in the death penalty—cannot diminish the significance of these failures; otherwise, rulemaking in areas of high public interest would be subject to a less rigorous standard of compliance than that applicable to rulemaking in areas of lesser interest to the public, which would be absurd. More importantly, the aim of the APA is not just a high level of public participation in the rulemaking process, but a high level of "meaningful" participation in that process. (California Optometric Assn. v. Lackner, supra, 60 Cal.App.3d at p. 506; Voss v. Superior Court, supra, 46 Cal.App.4th at pp. 908-909.) Meaningful public participation on the merits of a proposed regulation takes place only when there is actual compliance with the "basic minimum procedural requirements for the adoption, amendment, or repeal of administrative regulations" established under the APA. (§ 11346, subd. (a).) These include timely provision to the public of a statement of the purpose of the proposed regulations, the rationale of the agency's determination that the regulations are necessary to carry out that purpose, the information or documents the agency relied upon in proposing adoption of the regulation, the alternatives to the proposed regulation the agency considered reasonable, and the basis or bases upon which the agency rejected those alternatives. (§ 11346.2.) As we have seen, the 102 people who attended the June 30, 2010 hearing and the 29, 416 who submitted written comments were not made aware (or timely made aware) of much of the information relied upon by the CDCR in proposing the three-drug protocol, and were, in fact, misled about this. Nor were they made aware of the alternatives to that protocol, which the CDCR deemed reasonable and considered, or the CDCR's reasons for rejecting those alternatives. As earlier noted, the CDCR's failure to discuss the one-drug lethal injection alternative in the FSOR, which did not correct but perpetuated omissions in the ISOR, was justifiably considered "particularly significant" by the trial court because many commentators—who felt that use of pancuronium bromide in the three-drug method "was unnecessary, dangerous, and creates a risk of excruciating pain"—believed the one-drug method superior. Nor was the public provided other important information required by the APA to be included in the rulemaking file, and that file was not made available to the public until June 11, 2009, six weeks after the CDCR published notice of the proposed regulation and less than three weeks before expiration of the public comment period.
Because undisputed evidence shows there was not "actual compliance" with the basic minimum procedural requirements for the adoption of administration regulations established by the APA, we shall affirm the judgment insofar as it invalidates the CDCR's proposed regulations in their entirety for substantial failure to comply with requirements imposed by sections 11346.2, 11346.9, subdivision (a)(4), and 11347.3, subdivisions (a) and (b).[12]
As previously explained, the trial court found that particular provisions of the proposed regulations failed to comply with the "necessity" and "clarity" requirements of the APA. The CDCR claims the trial court lacked authority to make these findings because the question whether proposed regulations satisfy these requirements is committed to the OAL, not the courts. Respondents disagree, but claim we should not address the issues because the CDCR failed to raise them in the trial court. The CDCR concedes it did not raise the issues below, but argues that an appellant may newly raise a pure issue of law presented on undisputed facts where, as here, "important issues of public policy are at issue." (In re Marriage of Hinds (1988) 205 Cal.App.3d 1398, 1403; see, e.g., Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 654, fn. 2; People v. Runyan (2012) 54 Cal.4th 849, 859, fn. 3.)
We agree with the CDCR that the issue whether an OAL finding of compliance with the "necessity" and "clarity" requirements of the APA is subject to judicial review is a matter of continuing public interest. It may also continue to be an issue in the rulemaking procedure mandated by our decision in this case, and is briefed by the parties. For these reasons we shall address the issue.
The necessity and clarity requirements are dealt with in three different portions of the APA, which appear in articles 5, 6, and 8 of title 2, division 3, chapter 3.5 of the Government Code. Section 11346.2, in article 5 ("Public Participation: Procedure for Adoption of Regulations"), requires agencies subject to the APA to prepare and submit to the OAL a copy of the express terms of a proposed regulation, and directs them, among other things, to "draft the regulation in plain English"; that is, the regulation should be drafted "in plain, straightforward language, avoiding technical terms as much as possible, and using a coherent and easily readable style." (§ 11346.2, subd. (a)(1).) Section 11346.2 also requires the submitting agency to provide the OAL the "rationale" for its determination that the proposed regulation "is reasonably necessary to carry out the purpose for which it is proposed." (§ 11346.2, subd. (b)(1).)
Section 11349.1, in article 6 ("Review of Proposed Regulations"), requires the OAL to review all regulations adopted pursuant to the procedure specified in article 5 and submitted to it for publication in the California Code of Regulations and "make determinations" as to, among other standards, "Necessity" and "Clarity." (§ 11349.1, subd. (a).) " 'Necessity' means the record of the rulemaking proceeding demonstrates by substantial evidence the need for a regulation to effectuate the purpose of the statute, court decision, or other provision of law that the regulation implements, interprets, or makes specific, taking into account the totality of the record. For purposes of this standard, evidence includes, but is not limited to, facts, studies, and expert opinion." (§ 11349, subd. (a).) " 'Clarity' means written or displayed so that the meaning of regulations will be easily understood by those persons directly affected by them." (§ 11349, subd. (c).)
As earlier noted, section 11350, in article 8 ("Judicial Review"), provides that "[a]ny interested person may obtain a judicial declaration as to the validity of any regulation... by bringing an action for declaratory relief in the superior court in accordance with the Code of Civil Procedure." (§ 11350, subd. (a).)
The CDCR's claim that the review of regulations for "necessity" and "clarity" is exclusively committed to the OAL cannot be squared with the scheme described by the foregoing provisions of the APA. To begin with, section 11350 specifically authorizes a "judicial declaration" as to the validity of a regulation that has previously been promulgated. The statutory authority of the OAL is limited to the review of proposed regulations prior to their submission for publication in the California Code of Regulations Supplement and transmittal to the Secretary of State. (§ 11349.1, subd. (a).) Moreover, the APA was designed not simply to advance meaningful public participation in the rulemaking process, but also to create " 'an administrative record assuring effective judicial review.' " (Voss v. Superior Court, supra, 46 Cal.App.4th at p. 908, quoting California Optometric Assn. v. Lackner, supra, 60 Cal.App.3d 500, 506.) Finally, in adjudicating the declaratory relief actions authorized by the APA, courts have entertained claims that regulations lack the "clarity" or "necessity" mandated by the APA. (See, e.g., Californians for Safe Prescriptions v. California State Bd. of Pharmacy (1993) 19 Cal.App.4th 1136, 1153-1155 ["clarity"]; California Forestry Assn. v. California Fish & Game Commission (2007) 156 Cal.App.4th 1535, 1552-1554 ["necessity"].)
Like the United States Supreme Court, the California Supreme Court has emphasized that a strong presumption in favor of judicial review operates when it is claimed that an administrative agency's action is in excess of its delegated powers and contrary to a specific statutory prohibition. (International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 270 (International Assn. of Fire Fighters), citing Leedom v. Kyne (1958) 358 U.S. 184, 188.) Accordingly, California courts "will not infer a legislative intent to entirely deprive the superior courts of judicial authority in a particular area; the Legislature must have expressly so provided or otherwise clearly indicated such an intent. [Citations.]" (International Assn. of Fire Fighters, at p. 270, citing, e.g., Garrison v. Rourke (1948) 32 Cal.2d 430, 435-436.)
The Legislature that enacted the APA not only failed to indicate any intent to deprive the superior courts of authority to review an agency's compliance with a provision of the APA after a finding by the OAL that the agency had complied; it unambiguously indicated the opposite intent. Subdivision (c) of section 11350 states that "[t]he approval of a regulation by the [OAL]... shall not be considered by a court in any action for declaratory relief brought with respect to a regulation." The text of the APA thus makes clear that initial review of a proposed regulation by the OAL is not exclusive but subordinate to judicial review.
Finally, the Legislature knows how to insulate a provision of the APA from judicial review when it wants to do so. Section 11346.45, which applies to proposed regulations that "involve complex proposals or a large number of proposals that cannot easily be reviewed during the comment period, " requires the agency to involve parties who would be subject to the proposed regulations "in public discussions regarding those proposed regulations" prior to publication of the required notice. Subdivision (d) of this statute declares that "[t]he provisions of this section shall not be subject to judicial review or [to OAL review pursuant to] section 11349.1." This express exclusion from judicial review clearly indicates the Legislature intended no others to be inferred. No such exemption from judicial review applies to the "necessity" or "clarity" requirements set forth in section 11346.2. Given the absence of any legislative indication that the "necessity" and "clarity" requirements of the APA are exempt from judicial review, the CDCR fails to rebut the presumption of judicial review of administrative agency action.
The CDCR's contention that responsibility to review a regulation for "clarity" or "necessity" "belongs solely to the Office of Administrative Law" rests entirely on our opinion in California Assn. of Medical Products Suppliers v. Maxwell-Jolly (2011) 199 Cal.App.4th 286 (CAMPS).) In that case, the trial court denied a trade association's petition for writ of mandate and complaint for declaratory and injunctive relief, in which it sought the invalidation of regulations adopted by the Department of Health Care Services to set upper billing limits (UBL) for providers of certain medical equipment and supplies to Medi-Cal recipients. The plaintiff in CAMPS argued that the Department's adoption of the UBL was outside its statutory authority and asked us to invalidate it because, among other alleged deficiencies, it lacked the minimum level of "clarity" required by the APA. We rejected the argument because we agreed with the Department that the issue "is for the Office of Administrative Law, not this court, to review pursuant to Government Code section 11349.1, subdivision (a), ... [which] provides that '[t]he office shall review all regulations adopted... and make determinations using all of the following standards: [[¶]... [¶] (3) Clarity.' " (CAMPS. at p. 319, citing Gov. Code, § 11349.1, subd. (a)(3).)
CAMPS does not assist the CDCR because it does not address the pertinent substantive legal issues. To begin with, we did not in CAMPS question the appropriateness of our adjudicating the plaintiff's claim that the Department violated the "necessity" requirement of the APA. Concluding the UBL was "a rational response to the Department's efforts to prevent fraud and abuse... and was not arbitrary and capricious, " we saw "no basis for invalidating the UBL for lack of reasonable necessity." (CAMPS. supra, 199 Cal.App.4th at p. 318.) Furthermore, with respect to the "clarity" requirement, the plaintiff in CAMPS failed to claim in its opening brief that (1) an unclear regulation may amount to an arbitrary and capricious act by an agency where it is too vague to provide adequate notice of the conduct proscribed or prescribed, or to provide sufficiently definite guidelines for enforcement, and (2) a regulation could be so unclear that it rises to failure to substantially comply with the APA. We expressly declined to address these issues in CAMPS because the plaintiff in that case presented those arguments only "tardily" in a reply brief, "without explanation" or "legal authority." (CAMPS, at p. 319.) In short, we were not called upon in CAMPS to dispositively decide the authority of a trial court to review proposed regulations for compliance with the "clarity" requirement of the APA. That is not here the case. The CDCR's opening brief takes the position that "exclusive authority to examine the regulations for clarity" rests with the OAL and respondents have contested the claim.
Nor do we think Pulaski v. Occupational Safety & Health Stds. Bd. (1999) 75 Cal.App.4th 1315 (Pulaski), which we relied on in CAMPS, applicable to the case at hand. Pulaski held that a trial court abused its discretion in striking a provision in a regulation as "unnecessary surplusage and ambiguous" because "it was not the court's function to clarify the standard... " for the administrative board, since "[t]he Legislature has expressly delegated to the OAL the responsibility for reviewing proposed regulations for 'clarity, ' 'consistency' and 'nonduplication.' (Gov. Code, § 11349.1, subd. (a).)" (Pulaski, at p. 1332.)
There was no such abuse of discretion in the present case, as the trial court did not alter, amend, or clarify any OAL regulation. With respect to "necessity, " it simply determined the ISOR "fail[ed] to describe the purpose and/or the rationale for the agency's determination" that it was necessary to monitor the inmate continuously for five days prior to execution, and to document this every 15 minutes; to remove all personal property from the inmate's cell; and to bind inmates with waist restraints during visits. In making this ruling, the trial court cited not just the mandate of section 11346.2, subdivision (b)(1)—which requires the ISOR to state the "specific purpose of each regulation adopt[ed]" and "the rationale for the determination by the agency that each adoption... is reasonably necessary to carry out the purpose and address the problem for which it is proposed" (§ 11346.2, subd. (b)(1))—but also a provision of OAL's own regulations defining the criteria to be employed in reviewing whether proposed regulations are necessary. The OAL regulation provides that "[i]n order to meet the 'necessity' standard of Government Code section 11349.1, the record of the rulemaking proceeding shall include" both "[a] statement of the specific purpose" of a proposed regulation, and "information explaining why each provision of the adopted regulation is required to carry out the described purpose of the provision." (Cal. Code Regs., tit. 1, § 10, subd. (b) (1), (2).)[13] The court did not expand or depart from the statutory and regulatory standards but enforced them.
With respect to "clarity, " the trial court found that some of the regulations will not be "easily understood by those persons directly affected by them" (§ 11349, subd. (c)), such as a provision requiring submission to the warden of information bearing on the sanity of a condemned inmate. The court pointed out that the proposed CDCR regulation on that subject (Cal. Code Regs., tit. 15, § 3349.3.2, subd. (a)(1)), which requires the inmate's counsel to submit such information no later than a week prior to the scheduled execution, conflicts with the CDCR's description of the effect of this regulation in an Addendum to the FSOR, which indicated this information could be offered to and received by the warden "at any time" prior to execution. The court apparently found the ambiguity provided insufficient notice of the duty of counsel and might interfere with enforcement of the regulation. The court also found that the term "reputable citizen" in a regulation restricting the number of witnesses to an execution "may have more than one meaning, " which also might interfere with enforcement.
In making these rulings, the court cited provisions of OAL's regulatory guidelines establishing that "[a] regulation shall be presumed not to comply with the 'clarity' [requirement of Government Code section 11349.1]" if, among other things, "the regulation can, on its face, be reasonably and logically interpreted to have more than one meaning" or "the language of the regulation conflicts with the agency's description of the effect of the regulation." (Cal. Code Regs., tit 1, § 16, subd. (a)(1), (2).) Citation of the OAL standard of review of a claimed violation of the "clarity" requirement cannot be compared to the conduct condemned in Pulaski. Moreover, the claim that authority to review whether proposed regulations comply with the "necessity" and "clarity" requirements of the APA rests exclusively with the OAL, precluding judicial review, was never presented in Pulaski and certainly not decided.
We conclude that, as a matter of law, the OAL's finding that proposed regulations comply with the "necessity" and "clarity" requirements—or comply with any of the other requirements the OAL is directed to review under section 11349.1, subdivision (a)—does not defeat the authority of the superior court to review regulations promulgated by an agency for compliance with those requirements.
The CDCR claims the trial court erred by "incorrectly conclud[ing] that the APA required the CDCR to provide an assessment of the regulations' fiscal impact."
The CDCR does not advance this claim in the form of legal argument. Its contention that it should not be required to comply with this requirement is set forth in its opening brief in a single paragraph consisting of four sentences, none of which advert to any case, statute, regulation, or other legal authority. [14] " 'Appellate briefs must provide argument and legal authority for the positions taken. "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." ' (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) 'We are not bound to develop appellants' arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.' (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; see also Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2; People v. Stanley (1995) 10 Cal.4th 764, 793.)" (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) We could consider this argument waived, but we can easily dispose of it on the merits.
The APA states that the notice of proposed adoption of a regulation "shall include" an estimate of the "additional costs or savings, both direct and indirect, that a public agency necessarily incurs in reasonable compliance with [the proposed] regulations." (§ 11346.5, subd. (a)(6); see also Pulaski, supra, 75 Cal.App.4th 1315, 1328-1329.) The point of the CDCR's argument—that a fiscal impact assessment is not required here because the costs and fiscal impact of lethal-injection executions are caused by the statute authorizing this type of execution (Pen. Code, § 3604), not by the CDCR's regulations—seems fanciful. Since virtually all regulations subject to the APA implement a legislative enactment, acceptance of the CDCR's argument would render section 11346.5 meaningless. Moreover, Penal Code section 3604 does not mandate many of the administrative measures required by the proposed CDCR regulation, such as the monthly training of 20-member "lethal injection teams" and the use of particular drugs and an array of specialized medical equipment. (Cal. Code Regs., tit. 15, §§ 3349.1.2, subd. (a)(1); 3349.1.4, subd. (c)(1); 3349.4.5) As the trial court noted, the former warden of San Quentin prison, where the death penalty is carried out, stated that depending upon the way in which they were carried out, the cost of past executions has ranged from "between $70, 000 to more than $200, 000 per execution." The trial court did not err in finding that a fiscal impact assessment was required.
In its final ruling, the trial court pointed out that the CDCR has not promulgated regulations pertaining to execution by means of lethal gas or the execution in any way of female condemned inmates, and therefore no regulatory authority "to carry out the execution of condemned inmates by lethal gas, or to execute any condemned female inmate." Apparently on this basis, the judgment executed and filed by the court declares that CDCR "is permanently enjoined from carrying out the execution of any condemned inmate by lethal gas unless and until regulations governing execution by lethal gas are drafted and approved following successful completion of the APA review and public comment process, " and also "permanently enjoined from carrying out the execution of any female inmate unless and until regulations governing the execution of female inmates are drafted and approved" pursuant to the APA.
The CDCR claims it was error to enjoin it from carrying out executions by means of lethal gas and of female condemned inmates because respondents challenged only the lethal-injection regulations, [15] and the trial court found that respondents lacked standing to raise claims concerning condemned female inmates. The issues of execution by lethal gas and execution of condemned female inmates were raised below in connection with respondents' claim that the proposed regulation incorporated documents pertaining to these matters by reference, without subjecting them to the APA review process. (Cal. Code Regs., tit. 1, § 20.) The trial court rejected the claim because the CDCR represented that procedures regarding the use of lethal gas and the execution of female condemned inmates did not then exist, "would be the subjects of separate documents and/or regulations, " and were not improperly incorporated by reference in the proposed regulations. "That said, " the court observed, "unless and until these prospective, separate documents/regulations have been drafted and approved following successful completion of the APA review and public comment process, the [CDCR] has no authority under [Cal. Code] Regs., tit. 15, §§ 3349-3349.4.6, to carry out the execution of condemned inmates by lethal gas, or to execute any condemned female inmate."
Apparently on the basis of this judicial observation, the judgment, which at the request of the court was prepared by respondents' counsel, permanently enjoins the CDCR "from carrying out the execution of any condemned inmate by lethal gas" and "from carrying out the execution of any female inmate" unless and until regulations governing these matters "are drafted and approved following successful completion of the APA review and public comment process."
So far as the record shows, the CDCR has never indicated any intent to execute condemned inmates by means of lethal gas, or to execute female condemned inmates in any manner, before it has promulgated regulations pertaining to such executions that comply with the requirements of the APA. Indeed, in response to our inquiry, the CDCR has here specifically acknowledged that, under Morales v. California Dept. of Corrections & Rehabilitation, supra, 168 Cal.App.4th 729, it cannot execute condemned female inmates or carry out any executions by lethal gas without promulgating regulations regarding such executions that comply with that Act. Since these matters have never been placed at issue in this litigation, the trial court's comments regarding execution by means of lethal gas and the execution of female condemned inmates are gratuitous, as are the related provisions of paragraphs 4 and 5 of the judgment. This case is simply not among those in which the granting of injunctive relief is statutorily authorized. (Code Civ. Proc., § 526.).
For the foregoing reasons, paragraphs 4 and 5 of the judgment are hereby vacated. The judgment is affirmed insofar as it declares that the CDCR's lethal injection protocol (Cal. Code Regs., tit. 15, §§ 3349-3349.4.6) is invalid for substantial failure to comply with the requirements of the APA, and permanently enjoins the CDCR from carrying out the execution of any condemned inmate by lethal injection unless and until new regulations governing lethal injection execution are promulgated in compliance with the APA.
Each party shall bear its own costs on appeal.
We concur: Lambden, J., Richman, J.
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Expert Recommendation.
While tracking down young kids or pets isn't quite as intense as tracking down say, fast action sports, the challenges are the same - with children and pets running around quickly and predictably, you need a camera with speed. The Canon SX10 provides just that, with one of the fastest shutter lag times available, as well as the high-ISO capability to take blur-free snapshots in low-light situations without too much noise. With a huge 20x zoom spanning from 28-560mm, the SX10 also easily covers the zoom range traditionally used for portraits, in addition to offering a wide-angle for more creative shots.
My Best In Class Pick
Canon PowerShot SX10 IS
The Canon SX10 is an ultrazoom camera from Canon's long-running S-series. Featuring a whopping 28-560mm (20x) lens, the SX10 has one of the largest zoom capabilities in the market. The SX10 easily covers the traditional 50-200mm portrait range, and provides a 28mm wide-angle for more creative close-up shots as well.
The SX10's shutter lag is above average, making it easier to react quickly and time your shots. The Canon SX10's high ISO performance is good - using a lighter approach to noise reduction, the SX10's images are somewhat grainy but also retain more detail than most cameras.
Comparison with Sony Cybershot DSC-H50
Compared to the Sony H50, the SX10 is a better camera in almost all ways - it has a wider 28mm wide-angle, faster shutter lag, and overall produces better high-ISO images.
Comparison with Sony Cybershot DSC-H10
With a 20x zoom, 28mm wide-angle, and fast shutter lag, the SX10 outperforms the H10 in all areas. However, if you're looking for something smaller/lighter that you can take around anywhere, the H10 comes in at almost half the weight and thickness.
- +Extremely zoom range covers wide-angle to telephoto
- +Fast shutter lag
- +Good high ISO ability
Where to buy
Canon PowerShot SX10 IS
- Zoom: 20.0x
- Resolution: 10.0MP
- AF Shutter Lag: 0.5 - 0.6s
- Easy to Use: Yes
- Highly Recommended at DPReview.com
- Dave's Pick at Imaging-Resource.com
- Rated Very Good by CNET.com
Comparing My Best In Class Pick with Other Good Choices
|Canon PowerShot SX10 IS
|Sony Cybershot DSC-H50
|Sony Cybershot DSC-H10
|Customer Rating
|Size (W x H x D)
|4.9 x 3.5 x 3.4 in.
|4.6 x 3.2 x 3.4 in.
|4.2 x 2.7 x 1.9 in.
|Weight (without batteries)
|19.8 oz
|14.6 oz
|9.3 oz
Close Min Focal Length (35 mm equivalent) The 35 mm equivalent focal length is a measure that indicates the angle of view of a particular combination of a camera lens and the sensor size. The term originates from the time when the vast majority of photography was done with 35 mm film. On any 35 mm film camera, a 30 mm or less lens is considered a wide-angle lens.
|28 mm
Close Max Focal Length (35 mm equivalent) The 35 mm equivalent focal length is a measure that indicates the angle of view of a particular combination of a camera lens and the sensor size. The term originates from the time when the vast majority of photography was done with 35 mm film. Larger max focal lengths make distant objects appear more magnified.
|560 mm
|Optical Zoom
Close Image Stabilization Available Image stabilization features are designed to reduce the blur that results from normal, minute shaking of a lens due to hand-held shooting. However, image stabilization does not prevent motion blur caused by the movement of the subject or by extreme movements of the camera.
|Battery Life
|600 shots
|300 shots
|310 shots
|Important Portrait Features
|Shutter lag
|High ISO quality
|People/Pet Portrait Rating
Sony Cybershot DSC-H50
The newest model in Sony's long-running H-line of ultrazoom cameras, the H50 is a full-featured do-everything camera, sporting a huge 15x zoom, 31mm wide-angle lens, image stabilization system, rotating LCD screen, and a host of other features.
The H50 has about average shutter lag, so you may have some difficulty precisely timing your shots. The H50 also packs a huge 31-465mm zoom - more than enough to cover your portrait subjects from nearly any perspective, from up-close with a wide-angle to far away with a telephoto. The lens also features image stabilization to combat camera shake when zoomed in.
The Sony H50 has slightly above average high ISO ability - while its high ISO images are slightly blotchy, they'll freeze the motion of fast-moving children and pets in low-light situations, and the results will be usable.
Comparison with Sony Cybershot DSC-H10
Compared to the Sony H10, the H50 is a far more full-featured option, with a larger zoom range, wider wide-angle, and an electronic viewfinder (EVF) which works better in bright sunlight and may help to frame photos better (the H10 only has the main LCD), although it's significantly larger at 3.4" vs. 1.9". Performance-wise, the H50 and H10 are fairly similar, with comparable shutter lag and high ISO ability.
- +Large zoom range covers wide-angle to telephoto
- +Above-average high ISO ability
Where to buy
Sony Cybershot DSC-H50
- Zoom: 15.0x
- Resolution: 9.1MP
- AF Shutter Lag: 0.5 - 0.9s
- Easy to Use: Yes
- Rated Very Good by CNET.com
Sony Cybershot DSC-H10
Part of its series of compact ultrazoom cameras, Sony's H10 is a full-featured camera that packs a versatile 10x (38-380mm) image-stabilized zoom into a compact 1.9" thick package. The large zoom range allows the H10 to cover your pets and children in the classical 50-200mm portrait range, as well as the longer-distance telephoto range and the close-up wide-angle range, although the H10's 38mm wide-angle isn't as wide as some other cameras.
The H10's shutter lag is about average for this class, so you may have a little trouble reacting quickly or precisely timing your photos. In terms of high-ISO ability, the H10 is above average, allowing you to take reasonably noise-free photos while avoiding blur from your fast-moving children and pets.
Comparison with Canon PowerShot SX110 IS
The H10's featureset is similar to that of the Canon SX110 - they both feature versatile 10x zoom ranges that adequately cover the traditional 50-200mm portrait range, have image-stabilized lenses, average shutter lag, and come in fairly compact sizes. What sets the H10 apart is its high-ISO ability, which produces cleaner images out-of-the-camera than the extremely grainy Canon cameras.
- +Zoom covers 50-200mm portrait range, and beyond
- +Above average high ISO
- +Compact (1.9" thick)
- -No wide-angle
Where to buy
Sony Cybershot DSC-H10
- Zoom: 10.0x
- Resolution: 8.1MP
- AF Shutter Lag: 0.5 - 1.1s
- Easy to Use: Yes
- Recommended at DPReview.com
- Rated Very Good by CNET.com
Canon PowerShot SX110 IS
The SX110IS is the little brother of Canon's full-featured SX10 IS - the SX110 packs a slightly smaller 36-360mm (10x) zoom range and comes in a much smaller 1.8" thick size. Beyond that it's a similar camera - the 36-360mm zoom range still covers most traditional portrait perspectives, though it lacks a real wide-angle for more creative close-up shots.
Shutter lag is about average - a little slower than the SX10, making it slightly difficult to snap photos at an instant. Like the other Canon cameras, the SX110IS uses a more conservative noise reduction method, retaining more detail but also making the images very grainy, although they can be cleaned up with noise reduction software.
Comparison with Canon PowerShot A650 IS
Compared to the A650IS, the SX110 IS is superior in most respects - it has a larger zoom range, is smaller and lighter, and is a bit cheaper as well. The SX110 doesn't have the A650's 12 MP resolution, but this isn't a factor unless you plan to make gigantic poster size prints of your children and pets.
- +Versatile zoom covers the 50-200mm portrait range and beyond
- +Compact size (1.8" thick)
- -Extremely grainy high-ISO images, unless edited with noise reduction software
- -No wide-angle lens
Where to buy
Canon PowerShot SX110 IS
- Zoom: 10.0x
- Resolution: 9.0MP
- AF Shutter Lag: 0.6 sec
- Easy to Use: Yes
- Highly Recommended at DPReview.com
- Dave's Pick at Imaging-Resource.com
- Rated Very Good by CNET.com
Canon PowerShot A650 IS
The Canon A650IS is a versatile, compact (2.2" thick) camera that features a monster 12MP sensors. While you're unlikely to ever use that much resolution (unless you were to make poster size prints of your children and pets), the A650IS's 35-210mm (6x) will cover the traditional range for portraits just fine, although it lacks a wide-angle lens for more creative opportunities.
The A650IS has about average shutter lag, which may make reacting quickly or precisely timing shots of your children and pets difficult at times. The A650IS's high ISO images are slightly worse than the Canon SX10, but still takes a "hands-off" approach to noise reduction that leaves images extremely grainy but detailed.
Comparison with Panasonic Lumix DMC-TZ4
Compared to the Panasonic TZ4, the A650IS lacks a number of features, namely the TZ4's more versatile 10x lens, 28mm wide-angle, faster shutter lag, and more compact 1.4" size. However, the A650IS is much better in perhaps the most important attribute, high ISO ability, where the TZ4 turns up blotchy messes, while the A650 can still take grainy, but usable photos.
- +Adequately covers the 50-200mm portrait range
- +Somewhat compact size (2.2" thick)
- -Slow shutter lag
- -Extremely grainy high-ISO images, unless edited with noise reduction software
- -No wide-angle lens
Where to buy
Canon PowerShot A650 IS
- Zoom: 6.0x
- Resolution: 12.1MP
- AF Shutter Lag: 0.5 - 0.9s
- Easy to Use: Yes
- Rated Very Good by CNET.com
Panasonic Lumix DMC-TZ4
Panasonic's long-running TZ series offers an enticingly featured package, bundling an image-stabilized lens, versatile 10x zoom, and 28mm wide-angle, all in one of the most compact bodies in this range (just 1.4" thick). The 28-280mm lens provides great versatility for portraits, covering the traditional 50-200mm range while also offering creative close-up opportunities with its 28mm wide-angle.
The TZ4 also has an above-average shutter lag, making it easier to snap those catch-it-or-miss it shots. The one weak point of the TZ4, however, is its below-average high-ISO - images from the TZ4 tend to be blotchy and lack detail, making it difficult to take photos of fast-moving children or pets in low-light situations.
- +Zoom covers 50-200mm portrait range, and beyond
- +28mm wide-angle for close-up perspective
- +Fast shutter lag
- +Very compact size (1.4" thick)
- -Poor high-ISO ability
Where to buy
Panasonic Lumix DMC-TZ4
- Zoom: 10.0x
- Resolution: 8.1MP
- AF Shutter Lag: 0.7 sec
- Easy to Use: Yes
How It Works
You tell us your budget, intended uses, and desired features. We show you personalized recommendations from unbiased experts to quickly identify the best digital camera for you.
How to Pick Digital Cameras
- For Travel Photos
- For Photos of Children or Pets
- For Action or Sports Photos
- For Photos in Low Light


text:
ERIC Number: ED165152
Record Type: RIE
Publication Date: 1978-Aug
Pages: 11
Abstractor: N/A
Reference Count: 0
Consumer Perceptions of the Media and Their Advertising Content.
Larkin, Ernest F.
To determine consumer preference regarding four forms of mass communication, an 18-item questionnaire was devised that asked individuals where they sought information on national and world affairs, local events, entertainment, and shopping (advertising). Results from the 108 respondents in the random sample indicated the following: newspapers provide the best information on shopping and sources of entertainment, as well as the most useful, honest advertising; although television offers the most in entertainment and national and world news, television advertising is annoying and misleading; and while radio and magazines hold a secondary position to the other two media, magazines are the best source of information on durable goods. (MAI)
Publication Type: Speeches/Meeting Papers
Education Level: N/A
Audience: N/A
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers: Audience Response
Note: Paper presented at the Annual Meeting of the Association for Education in Journalism (61st, Seattle, Washington, August 13-16, 1978)


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text:
Fruit Roll-Ups is a brand of fruit-flavored snack that debuted in grocery stores across the United States in 1983. Research for the product began in 1975. Fruit Roll-Ups are manufactured by General Mills and distributed under the Betty Crocker brand in the United States and the Uncle Tobys brand in Australia. The snack is a flat, pectin-based fruit-flavored snack, wrapped around a piece of cellophane for easier removal. Often the consumer must unwrap the cellophane an extra revolution in order to remove the snack due to its tendency to stick to itself. Fruit Roll-Ups is similar to Fruit by the Foot (also a General Mills Snack) in that both snacks are packaged similarly (i.e., rolled around a material so the product does not stick to itself); however, the two snacks differ with respect to taste, texture, and consistency. In the United States, retail Fruit Roll-Ups are sold in boxes of 10.
Contributions by Jasonbentley, Eric Sellars, and Pujols55555.


text:
Senior American military figures have warned Britain that a hasty exit from Afghanistan could strain relations between the two countries.
The Daily Telegraph last week revealed that David Cameron has ordered British commanders to draw up plans to start pulling hundreds of British troops out of Afghanistan within weeks.
The Prime Minister is expected to discuss a co-ordinated Afghan withdrawal in London next week.
The prospect of an imminent British withdrawal is understood to have alarmed American generals, who are trying to resist political pressure for a major reduction in US troop numbers.
Well-placed sources said that US generals have delivered a blunt warning to their British counterparts about the impact of an early UK withdrawal.Continue reading on www.telegraph.co.uk


text:
Having undesirable fat in various areas of your body can have a significant effect on your health and self-confidence. While traditional weight loss through exercise and diet is a great way to reduce weight in general, even the best workouts can't target problem areas like the stomach, inner thighs, arms, and buttocks. Liposuction is a time evaluated treatment that is used to eliminate excess fat from particular locations of the body, allowing an individual to form and contour their body to their preference. Is liposuction right for you? Learn now.
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• Immediately visible changes. Unlike traditional weight loss, liposuction develops modifications that are immediately visible in the body. Some difference is obvious immediately, and the preferred results are typically achieved in just a few days.
• Proven and safe. This cosmetic treatment has been carried out by seasoned specialists all over the world for years and the method has been improved over and again to be safe and effective.
• Healing time is normally quickly. The downtime needed after having this kind of procedure is usually much less than what is required for other kinds of cosmetic treatments, including tummy tucks, breast reduction, and more. Individuals who have had the treatment can frequently go back to work far more rapidly than they expected and can return to living a healthy, active lifestyle.
• Weight loss can be irreversible. With the ideal upkeep strategies, the fat that was eliminated throughout the liposuction treatment will not return.
• Complete control over your body. With liposuction, an individual can have complete control over how they want to look, beyond exactly what traditional diet plan and workout can offer. Giving individuals this power over their bodies increases self-confidence and help people feel their best.
While there countless advantages to liposuction, there are naturally a few cautions that need to be taken into consideration before making the final decision to move forward with the procedure.
Cons of Liposuction
Prior to having actually liposuction done, it is necessary to examine the potential downsides of the procedure and figure out if the advantages exceed the threats in your particular case. Your cosmetic surgeon can assist you find out more about the dangers connected with the treatment and can assist you decide if moving forward is the best thing for you.
• Complications with basic anesthesia. Because liposuction is performed under general anesthesia, the procedure brings the exact same threats as any other kind of surgical treatment where basic anesthesia is used. Hidden medical conditions might enhance these dangers.
• Adverse reactions. Bruising, bleeding, and pain are all to be anticipated, however, in rare cases can cause more significant problems.
• The possible to get the weight back. After having liposuction done, it is crucial to preserve a healthy diet plan and exercise properly as recommended by your physician. Failure to do so could result in gaining back the weight that was lost or perhaps even more.
Although there are risks related to liposuction, for many individuals, the benefits far exceed them. Inform yourself about the procedure by having extensive discussions with your surgeon and think about how liposuction has the prospective to affect you as a distinct individual. Only you and your cosmetic surgeon can identify if liposuction will provide you with the outcomes you are searching for within your expectations.
Laser Liposuction procedure is a new non invasive procedure to loose unwanted bodyfat in Random Lake Wisconsin
Laser liposuction is a newer, minimally invasive procedure that includes heating the fat cells to melting point and eliminating the melted fat through a small cannula. The treatment is typically done right in your physician's workplace and is an excellent option for people who have less than 500 ml of fat to get rid of from any one area. Laser liposuction can be a safe, complementary treatment to weight-loss in order to sculpt the body you've constantly desired.
Contact a Surgeon in your Random Lake Wisconsin today.
If you're considering liposuction as a weight-loss option, it is very important that you discuss your desires with a certified plastic surgeon in your area. Your specialist will carry out a complete examination and health history questionnaire to determine if liposuction can benefit you and assist you reach your physical and emotional goals. Call today for an assessment and find out more about how liposuction can help you achieve the body of your dreams.


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Secure your place in line (and history) as one of the first owners of ShiftWear sneakers by making a 50% deposit, the remaining balance will be requested before dispatch.
Enjoy all advanced features of your sneakers at no additional charge. These features will become optional paid items at a later date.
The pre-order program will be open for a limited time. Once the pre-order program is closed, new customers will not be able to purchase the sneakers until they are available in retail stores, which is expected to be end of 2017 or the beginning of 2018.
Estimated shipping of pre-orders is expected to begin in December 2016.
With a venture of this magnitude, there are inherent risks and possible obstacles which may cause production and/or shipment delays. We assure you that the ShiftWear team is working diligently to ensure that any possible delays are minimal.
The funding we raise through the pre-order program will be used to begin production of the sneakers. Once you place your pre-order, there will be NO refunds, unless we don't deliver your order.
All supporters of this project will be kept updated of progress through our community forums.
Your card will be charged immediately.
We have now closed phase 1 pre-orders, please check back for phase 2 pre-orders. If you have any questions please contact our team: firstname.lastname@example.com


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FRANKLIN TOWNSHIP - New Jersey released its rules for obtaining medical marijuana, which will be available in July.
It won't be easy to be approved for a prescription as there are stringent criteria that must be met.
Under the state law, those that apply for access to medical marijuana will have to show that they have one of nine approved diseases or conditions. They'll also have to provide documentation from at least four visits to a doctor's office over the course of one year. The doctor must also vouch that traditional forms of relief have failed.
Patients will have to pay from $20-$200 per year, depending on their income.


text:
TBSS Walkins Drive For Freshers On 16th to 19th September 2016
TBSS Walkins Drive For Freshers
Designation : Customer Care Execuitve
No Of Positions : 80
Qualification : Any Graduates
Also Read :
Experience : 0 - 4 years
Location : Chandigarh, Mohali
Also Read :
Salary : As Per Industry
Job Description :
* Any Graduates or 12th pass are eligible
* Excellent Communication Skills
* Excellent Hand & Typing
Recruitment Process :
Also Read :
Company Profile :
Tata Business Support Services Ltd (TBSS) is a wholly owned subsidiary of Tata Sons, providing outsourced contact centre services to large telecommunications operators, Internet service providers, DTH service providers and online travel agencies amongst other domestic (Indian) and international clients. Tata BSS is among the third party outsourced customer service providers in India, serving domestic as well as international customers. With facilities across 21 "global delivery centres" that accommodate 23000+ employees.
TBSS provides inbound and outbound services (voice and non-voice) in English (for US and Indian geographies) and 14 regional Indian languages from its Indian centres. The centres in the US offer inbound customer care services, email support, cross-selling and up-selling services to industries including e-commerce, healthcare & travel.
Apply Mode : Walk in
Also Read : This Week Walk in Drives
Walk In Date : 16th to 19th September 2016
Walk In Time : 09:30 AM to 02:00 PM
Walk In Venue :
Tata Business Support Services Ltd,
Plot No B-75, Industrial Area,
Phase-7, Mohali,Punjab.
Contact Person : Mr. Gurdev Singh
Contact No : 0172-6509333
Also Read : TBSS Upcoming Walk in Drives
TBSS Walkins Drive For Freshers On 16th to 19th September 2016 Reviewed by Ramesh Reddy on 21:24:00 Rating:


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- 559 Posts. Joined 12/2011
- Location: Massachusetts
- Select All Posts By This User
Need new headphones for metal music <$300
Head-Fi's Best Sellers
- "Amazing soundstage, extremely comfortable, Outstanding sound quality""Natty, Removable 4 Conductor Cable."
- "Smooth Presentation, a linear, stout sound at louder volumes. ""Sensational Excursion Factor , Exquisite Bass Extension , Almost perfect Mid-Range , Classic HE-60/90 Design , Potential Upper Treble Extension "
- "Luxurious midrange, full and extended bass, smooth treble, comfortable.""Pros : Sound quality, comfort, build, modularity (parts), balance, naturalness, clarity, detail"
- 119 Posts. Joined 1/2013
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As a curve ball, if you would consider IEM's, the Vsonic GR02 Bass edition are awesome for metal IMO.
Worth looking at a few threads on them, cheap (<$40 on ebay), so if they are not the sound you like, no major loss.
I've bought 2 pairs of cans in the last 3 months and a dozen IEM's and Cans in the last 12 months (mainly budget). Not a stereophile sound, but many fans.
Oh, and bumping twice within the first 8 hours... A bit much?
Edited by Noone025 - 2/26/13 at 7:34pm
- 566 Posts. Joined 12/2006
- Location: Valparaiso, Indiana
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- 968 Posts. Joined 7/2005
- Location: Twin Cities
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- 1,171 Posts. Joined 6/2009
- Location: Socal
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The Sennheiser HD600's are mids centered, with more treble than the HD650's. You can probably find them at that price if you're patient. They're very comfortable, too. You'll need an amp to get the most out of them, though.
Oh, and don't bump your thread every few hours. That tends to get on peoples' nerves around here.
- 7,038 Posts. Joined 4/2011
- Location: Florida
- Select All Posts By This User
Hi I am looking at new cans for listening to metal music. I like to have the mids louder than everything, and with a very strong treble as well. Bass is also important to me, but not as much as mids. I can go up to about $300... but if theres something thats like waaay better than everything else for about $350, I wouldn't mind going a little higher. They can be open or closed, but comfort is very important to me. I have been looking at the V-Moda M100's, but I have heard denon is really good too. What do you guys think I should consider?
Look into:
Beyer DT880
Hifiman HE-300
Sennheiser HD598
Sony MA900
Mr Speaker Mad Dog
AudioTechnica A700X
Ultrasone PRO 750
And with your needs, always remember you can equalize to perfect it.
Very best,
- 702 Posts. Joined 5/2012
- Location: Jakarta/Bandung, Indonesia
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1. Grado SR325i
2. Alessandro MS2i
They all are open and semi open back headphones that will complement your Senn HD25-1 and fits with metal music IMHO
As already been said, Sennheiser HD600 is great for metal, very clear and not harsh sounding and a nice oompfhh in the bottom end while not bassy. The HD650 is slightly too forward for metal and can give fatique. HD600 are open cans, and they need an amp, so they don't fit in every environment. The HD25-II and Shure SHR-840 are nice portable and also closed alternatives, while I love my rather cheap Sony MDR-ZX700:s for on the go music
Edited by xeizo - 2/27/13 at 11:40am
I would go for the O2:
or the ODAC-combo, if you need a DAC as well:
but of course there is cheaper alternatives out there that would do, some Fiio or something similar, or why not a USB-soundcard with built in headamp like the semiprofessional ones from M-Audio, E-MU or Presonus or the like ...
Edited by xeizo - 2/27/13 at 12:08pm
Head-Fi's Best Sellers
- "Rich, exciting bassy sound. Elegant looks. Removable ear-cups and wire. ""Great soundstage, realistic bass impact and extension with little bloat, build quality, comfort, timbre and texture, great looks"
- "Luxurious midrange, full and extended bass, smooth treble, comfortable.""Pros : Sound quality, comfort, build, modularity (parts), balance, naturalness, clarity, detail"
- "surprisingly compact, good noise isolation, goat skin travel bag, extension cable, stellar sound, stellar build quality"


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Jaime Meraz Balances His Alter-Ego Style in Old Town Scottsdale
Jaime Meraz is professional in pastel.
Jason Hicks Photography
Businessman by day and Old Town socialite at night, Scottsdale's Jaime Meraz demonstrates his professional and domestic twist on style. The 26 year-old real estate agent maintains his lean physique by consistently staying active.
Whether it be his polished, career ensemble (sports jackets and blazers) or his weekend warrior gear (Toms, H&M slim-fit jeans and a T-shirt), Meraz suits up for every occasion.
See also: - GROWop's Joshua Hahn Mixes "Suit-up" and Sustainable Style in Downtown Phoenix - Courtney Larsen Brings Her Green Thumb and Stylish Wardrobe to Hearts.com - Titus Fauntleroy Infuses Style and Comfort at Lux Central
What are you wearing right now? Black slim-fit H&M pants with Steve Madden combat boots, a white long-sleeved H&M thermal, a black biker-style leather jacket from Guess and all black Fossil watch.
Upcoming Events
Moscow Ballet's Great Russian Nutcracker
TicketsThu., Dec. 22, 7:00pm
Andrew Dice Clay
TicketsSat., Jan. 14, 8:00pm
The Illusionists - Live From Broadway
TicketsTue., Jan. 17, 7:30pm
ASU Meridians
TicketsFri., Feb. 3, 7:30pm
David Spade
TicketsFri., Feb. 3, 8:00pm
What was the last item of clothing that you purchased? An all black Fossil watch.
Can you tell us a little bit about your own style? It's very different. For my career, I dress extremely professional. Anything from a sports jacket to a suit or a dress shirt because I'm a real estate agent and I have to dress very professional. But my style is completely different when I'm either with friends or lounging at home. When I'm off work I'll wear something like a pair of Toms with my slim fit jeans with just a tee shirt and a watch. So my style is definitely a night and day difference.
What's your favorite item of clothing in your closet? Brown combat boots from Aldo.
What's a fashion trend you can't stand? I really don't like UGG boots.
Give us a childhood memory of you and your clothes. It's a style in the Mexican community, especially with boys to dress as cowboys. When we were younger, my mom would dress us just like cowboys. The cowboy boots, tight-ass wranglers, big belt buckle and a long-sleeved shirt and a cowboy hat. She would force my brother and I to dress like that all the time and we hated it so much.
What do you like to accessorize with? I always wear a watch and sunglasses. I try to match my watch with my belt and my shoes.
Name five items every man should have in her closet: - a scarf - a pair of black pants - a white v-neck short sleeve shirt - a suit - a nice pair of jeans
What's your piece of fashion advice for Phoenix? Dress comfortably. Comfort is way more important that what's fashionable. It's not a bad thing to step out of your comfort zone every once and a while but if you feel comfortable, you think you look good and you feel confident I feel that's most important thing.
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French designer Charlotte le Hardy creates one-of-a-kind high jewellery designs that incorporate a narrative humour to uplift the wearer's mood.
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text: Our residence hotel recommended this place. We were staying a few blocks away.We dined two nights in a row at this restaurant -- not because it was close but because it was so good! As an interior designer, I loved the simple black and white decor. The food is interesting and inventive. The antipasti zucchini wrapped shrimp is the very... More


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When athletes lose to inferior opponents, the excuses quickly follow. That's a pretty good rule of thumb, and it applies to women's soccer, too. Here's what Hope Solo said after the U.S. lost to Sweden in the Olympics:
"I thought that we played a courageous game," Solo said. "I thought that we had many opportunities on goal. I think we showed a lot of heart. We came back from a goal down; I'm very proud of this team.
"I also think we played a bunch of cowards. But, you know, the best team did not win today; I strongly, firmly believe that. I think you saw America's heart. You saw us give everything that we had today. Unfortunately the better team didn't win."
The U.S. outshot Sweden 27-2, but the game ended 1-1 after 120 minutes plus stoppage time. The unique thing about soccer is that its tiebreaker is a shootout, which is kind of like playing an NFL game and then having a field goal kicking contest. In other words, once you go to a shootout, the better team suddenly doesn't have much (any?) of an edge.
Asked to elaborate on what she meant by cowards, Solo referenced Pia Sundhage, the Swedish coach who formerly coached the United States and won two Olympic gold medals.
"Sweden dropped off, didn't want to open play," Solo said. "They didn't want to pass the ball around. They didn't want to play great soccer, entertaining soccer. It was a combative game, a physical game. Exactly what they wanted and exactly what their game plan was. They dropped into a 50. They didn't try and press, they didn't want to open the game and they tried to counter with long balls. We had that style of play when Pia was our coach.
"I don't think they're going to make it far in the tournament. I think it was very cowardly. But they won. They're moving on, and we're going home."


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Graduate School of Business
Philip H. Corboy Law Center
Lewis Towers Suite 630
Chicago, IL 60626
United States
M.B.A./M.S.I.M.C. - Integrated Marketing Communications
Format: Campus
Loyola students may choose to combine an M.B.A. with a Master of Science in Integrated Marketing Communications (M.S.I.M.C.) to provide the breadth and depth of knowledge often required of marketing professionals. Applicants for the dual degree should submit a single application to the Graduate School of Business. Current M.B.A. or M.S.I.M.C. students may also seek admission to the dual-degree program but should do so as early in their studies as possible. Students work with an advisor to plan their program of study.
The dual degree in business and integrated marketing communications requires four fewer courses than if each degree were earned separately. Students completing the dual degree will earn an M.B.A. with a specialization in marketing and an M.S.I.M.C. degree.
Classification: Doctoral/Research University—Extensive
Locale: Large City
Size & Settings: 10,000-19,999


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HEXAPRO Kiwi Kickstarter
Recipes Aug 21 2015
Recipes Aug 21 2015
ALLWHEY GOLD Strawberry Sensation
Recipes Mar 1 2016
Recipes Mar 1 2016
Gingerbread Protein Pancakes
Post-Articles Dec 24 2014
Post-Articles Dec 24 2014
Traditional Filipino cuisine is the result of various cultural influences from the different foreign encounters the people of the country have faced throughout history.
Despite what many think, there are many Filipino dishes that are healthy, low-fat, full of vegetables and more importantly, easy to cook!
Soak the rice noodles for about 10 minutes. Sautée the garlic and shallots (or onion) in olive oil. Add chicken, soy sauce and season with salt and pepper. Sautée until chicken is cooked or lightly brown.
Add carrot, celery, and shrimp. Cover and cook for a few minutes, then add sliced cabbage and chicken broth. Bring to a boil. Once the carrots and celery have softened a bit, add the rice noodles. Mix well to distribute the flavors and cook for a few more minutes until the noodles are soft.
Serve with sliced limes on the side. Serves 4.
Copyright © 2016 ALLMAX NUTRITION INC. All Rights Reserved.


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Cell phones should not be used by students on the school campus. Texting and phone calls are major distractions for students. They disrupt the focus and attention that is essential for learning and make the job of teaching much more difficult. The incidents of theft of cell phones is another negative factor.
Schools should not implement a general ban of cell or mobile phones. Rather, schools should impose restrictions on the time and place when cell phones are used by students. For example, cell phone use can be prohibited in classrooms and cafeterias but permitted on the grounds around school buildings during students' free time.
No, schools should not ban the use of cell phones. Students have several legitimate reasons to use the phones outside of class, including to contact their parents or check on a sibling. Students also store assignments, calendars and other class information on their phones, and they need to be able to access that data.
Students should not use cell phones in the classroom because they can be a distraction. However, outside of class, they can be useful for a variety of reasons, such as to help them locate their friends, call their families for a ride, or to help them research information that they need for homework assignments.


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Pierre de Coubertin quotes (French Educator, primarily responsible for the revival of the Olympic Games in 1894. 1863-1937)
Connie Mack quotes
Wilson Mizner quotes (Playwright, 1876-1933)
Chris Evert quotes (American professional Tennis Player. b.1954 Fort Lauderdale, Florida, USA)
Wilma Rudolph quotes (First American woman Runner to win three gold medals at a single Olympics. 1940-1994)
Babe Ruth quotes (American Baseball Player, one of the first five players elected to the Baseball Hall of Fame and the first to hit over 50 home runs in one season. 1895-1948)
Oliver Wendell Holmes quotes (American Physician, Poet, Writer, Humorist and Professor at Harvard, 1809-1894)


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Could be the plugged port which took the 900 from the warmer side of the Heir to the other way round.
- 8,004 Posts. Joined 12/2009
- Location: USA
- Select All Posts By This User
Could be the plugged port which took the 900 from the warmer side of the Heir to the other way round.
This is true.
Just placed the order for mine. Should be here in a day or two, will definitely post impressions, comparisons to Westone 3 and the HF5!
Same boat... after much deliberation over 4.Ai, W4R & UE900... hopefully bit more fun and leaps and bounds ahead of my current faithful UE700s!
How long did it take for them to email you the prepaid shipping label its been more than 24hrs for me.
Damn, I wish I know about the site and its 30% off deal sooner :(. I never tried the UE700, but the UE900 should be an improvement over it, but may not be in such a big leap that you might expect.
I should be looking out primarily for a drop in mid-bass, and a more neutral sound, yes?
Everything under around 800 Hz drops anywhere from 0 dB all the way up to 5/6 dB... It's really that drastic... If you have access to a parametric EQ, try this:
16 Hz = -2 dB
500 Hz = -6 dB
800 Hz = 0 dB
This should be able to give you a simple idea of what it'll sound like (assuming no clogging has occurred already).
Update: My TF10 Complys fit with the nozzles of the UE900. I've long since thrown away the box, and I can't remember which exact model of Comply they were.
Probably T500's
My unboxing video:
Sorry about the lightning, i have a new area for unboxings now!
It is according to Comply's site, too bad I don't have any 500s to test this out. BTW if anyone is considering the UE 900, then I highly recommend spending an extra 5 bucks for a round leather case, as the box is a bit big and take on finger prints like nothing else, plus the soft pouch is worthless for protection.
Really, really enjoyed these. I hate that I'm sellin' em. Will definitely look to get them again in the future.