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December 5, 1997
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 95 C 6780--Elaine E. Bucklo, Judge.
Before POSNER, Chief Judge, and RIPPLE and EVANS, Circuit Judges.
Joyce Robinson, a brakeman for the Burlington Northern Railroad Company ("Burlington" or "the railroad"), was injured while she was directing the switching movement of seventeen railroad cars from one track to another. She brought this action against Burlington under the Federal Employers' Liability Act, 45 U.S.C. secs. 51-60 ("FELA"), alleging that the railroad's negligence caused her injury. Ms. Robinson appeals from the jury's verdict for the railroad and the district court's denial of her motion for a new trial. For the following reasons, we affirm the judgment of the district court.
A. Facts
On a sub-zero January morning in 1994, Ms. Robinson was assigned to a yard switching job in the Cicero departure yard. As the foreperson of the switch crew, she was to oversee the movement of railroad cars from one track to another. Working with engineer Grant Hinton and brakeman Mike Aguirre as her crew, Ms. Robinson boarded the lead car, positioned herself on the ladder and directed the switching movement using a hand-held radio. Her crew, in the engine cab seventeen cars away, was approximately 900 feet from Ms. Robinson and could not see her. The engine was traveling at the normal switching speed of about 4 miles per hour as it shoved the string of rail cars slightly uphill on number 6 track for a quarter mile. The engineer testified that there was no evidence of defects in the equipment or operation of the train that day.
Each train car was coupled to another and to the engine by a connector called a knuckle that attaches to the drawbar of the next railroad car. Because of the design of the couplers, there is movement or "play" between the cars. The jerking movement associated with train starts and stops, caused by the extension and retraction of the couplers and drawbars between the cars, is called "slack" action. *fn1 The amount of slack action varies according to the train's speed, the distance available for the train to stop, the terrain and grade of the track, the type of brakes on the engine and the speed with which the brakes are applied. Engineer Hinton testified that severe slack action could occur, "depending on speed and other variables," if the independent brake is applied too quickly. R.48-3 at 207-08. However, he also testified that the slack action that occurs during a switch, when the train is going only 4 miles an hour, should not be great enough to knock someone off a car. Nevertheless, it is this slack action that Ms. Robinson claims caused her to fall from the ladder of the lead car. We therefore focus on the events leading to Ms. Robinson's fall.
Once the train made the switch onto number 6 track, Ms. Robinson gave the engineer the stop signal; she testified that she had to give a second signal before the train actually stopped. After the train came to a stop, Ms. Robinson testified, she felt a normal slack action and began to dismount from the rail car. At that point, however, she testified that an abnormal, rough slack action occurred. As a result, she lost her balance; when she fell to the ground, her right ankle was injured. Ms. Robinson asserted that normal slack action would not be sufficient to cause someone to lose her grip. According to Ms. Robinson, the cause of the rough slack action was that "[e]ither the equipment wasn't working properly or the engineer stopped the train too fast." R.48-2 at 69.
Engineer Hinton's report of the circumstances at the time of Ms. Robinson's injury differed from hers. He testified that, as he was shoving the cars further up number 6 track, he lost radio communication with Ms. Robinson. Following normal procedures, therefore, Hinton coasted to a stop as he was required to do until he received further instructions. Perhaps seconds or a minute or so after the train came to a stop, he testified, Ms. Robinson told him, "Okay: Shove them my way." R.43-3 at 197. Hinton described what he did next: "And then we shoved just a very few feet, maybe a boxcar length or half a boxcar, and she said, 'That'll do.' And then at that time she called Mr. Aguirre down to finish up [the job]." Id. The engineer was asked to describe his stop; he testified:
The initial stop was made basically by coasting down to a stop, because we had no communication, so I had to bring the movement to a stop. And then when we started up again, the engine only moved very, very small, very short distance, and then we stopped again. So both times would have been with the independent brake. Id. at 197-98. Hinton expressed the opinion that the slack would not have been severe under those circumstances. Id. at 199.
Kenneth Hamlet, a switchman/brakeman and conductor with the railroad, reported that he was in an engine several tracks away from track number 6 on the morning in question. He testified that he heard, on his radio, the communication between Ms. Robinson and her crew. His testimony indicated that, after she had ordered the engineer to move the train 5 car lengths, she stated, "That'll" and then "it's like she got cut off in the middle of sentence or something." R.48-4 at 393. Hamlet testified that he "heard the crew calling her saying, 'Did you say "that will do," Joyce?'" but she did not respond on the radio. *fn2 Id. at 394.
Hamlet also described the view he had of the rail cars on track 6; he stated that he briefly saw Ms. Robinson as the car on which she was riding passed him on that adjacent track. Hamlet testified that Ms. Robinson was positioned on the back of the car rather than on the side ladder. He also testified that he had noticed that, when the train stopped, the stop appeared smooth and nothing indicated that there was a rough slack action. When he did not hear Ms. Robinson's response on the radio, however, Hamlet got off the engine and walked over to track 6, intending to let Ms. Robinson use his walkie-talkie to complete the move; he found her hobbling on one foot.
At trial Ms. Robinson offered another factor which may have contributed to her accident. She testified that, on that morning, she was wearing the "Iceman" boots which the railroad had provided its employees for cold weather conditions. Those boots were, according to Ms. Robinson, awkward and slippery and too wide for her feet to fit on the bottom rung, or stirrup, of the ladder. Because of those boots, she testified, her left foot slid across the rung and she lost her balance.
B. Jury Determination
This case came to trial on December 16, 1996. Ms. Robinson alleged that her injury while working on one of Burlington's trains was caused by the railroad's negligence: by an equipment malfunction, by the engineer's excessively abrupt application of the brake, by the clumsy and slippery boots provided by the railroad, or by a combination of those factors. Among the claims in her complaint and at trial was one based on the theory of res ipsa loquitur. The complaint stated:
[A]t the time and place alleged the cut of cars, the persons operating movement of the cut of cars, the throttle and braking system, and all of the appurtenances of the locomotive and cars were under the maintenance, operation and control of and in the exclusive possession of the defendant, and severe slack action occurred causing plaintiff to be thrown from the side ladder of car and to be injured, and accidents of the nature described herein do not occur in the ordinary course of operations if defendant had used ordinary care. R.1 para. 8(a). Ms. Robinson proposed a res ipsa loquitur jury instruction; however, the court refused to give it.
On December 19, 1996, the jury returned a verdict in favor of the railroad. The trial court denied Ms. Robinson's motion for a new trial. This appeal was filed in timely fashion.
A. The Res Ipsa Loquitur Jury Instruction
Ms. Robinson's claim is based upon FELA, a federal statute providing that a railroad is "liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." 45 U.S.C. sec. 51. The Supreme Court has construed liberally this statute in order to promote the remedial goal of allowing recovery for injuries and deaths of railroad workers, in recognition of the physical dangers of such work. See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994). Nevertheless, the Court has made clear that the statute does not turn a railroad into the workers' insurer. "'The basis of [the employer's] liability is his negligence, not the fact that injuries occur.'" Id. (quoting Ellis v. Union Pac. R.R. Co., 329 U.S. 649, 653 (1947)).
"What constitutes negligence for the statute's purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes." Urie v. Thompson, 337 U.S. 163, 174 (1949). In Urie, the Court also recognized that FELA "is founded on common-law concepts of negligence and injury, subject to such qualifications as Congress has imported into those terms." Id. at 182. In Gottshall the Court reiterated that principle. See 512 U.S. at 543. In conformity with Urie and Gottshall, we have declared that it is well settled that we treat negligence claims under FELA as federal questions. See Gillman v. Burlington N. R.R. Co., 878 F.2d 1020, 1022 (7th Cir. 1989). *fn3
The doctrine of res ipsa loquitur (a Latin phrase meaning "the matter speaks for itself") is applicable in FELA cases and, in appropriate circumstances, permits an inference of negligence on the part of the railroad for railroad-related injuries. The Supreme Court set forth the prerequisites for invoking a res ipsa loquitur claim in a FELA action in Jesionowski v. Boston & Maine Railroad, 329 U.S. 452 (1947):
"[W]hen a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as in the ordinary course of things does not occur if the one having control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant's want of care." Id. at 456 (quoting San Juan Light & Transit Co. v. Requena, 224 U.S. 89, 98-99 (1912)).
Following Jesionowski, other circuits have formulated more precise approaches to the doctrine's applicability. An approach that recurs in the case law of the circuits is the Fourth Circuit's formulation requiring the satisfaction of three conditions:
(1) the injury for which the plaintiff seeks recovery must be of a kind that ordinarily does not occur in the absence of negligence; (2) the injury must have been caused by some agency or instrumentality within the exclusive control of the defendant; and (3) the injury must not have been due to any contribution or voluntary activity on the part of the plaintiff. Stillman v. Norfolk & W. Ry., 811 F.2d 834, 836-37 (4th Cir. 1987).
Another formulation of the FELA res ipsa requirement articulated by the federal courts is based on the Restatement (Second) of Torts:
[A]n inference of causation based on the res ipsa loquitur doctrine requires that (1) the event be of a kind which ordinarily does not occur in the absence of negligence, (2) other responsible causes, including conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence, and (3) the indicated negligence is within the scope of the defendant's duty to the plaintiff. Beissel v. Pittsburgh & Lake Erie R.R. Co., 801 F.2d 143, 149 (3d Cir. 1986) (citing Restatement (Second) of Torts, sec. 328D (1965)), cert. denied, 479 U.S. 1088 (1987).
One of the most succinct expressions of the general rule was stated in Pennsylvania Railroad Co. v. Pomeroy, 239 F.2d 435 (D.C. Cir. 1956), cert. denied, 353 U.S. 950 (1957):
In general, the rule is that, where an injury occurs which in the ordinary course of things would not have occurred if the one having control had used proper care, a reasonable basis is afforded, in the absence of any explanation, to attribute the injury to the lack of care on the part of the defendant. Id. at 446.
These formulations, although helpful to a court's analysis, must be implemented with care. In Jesionowski, which remains the governing precedent, the Supreme Court emphasized that, in the context of FELA cases, federal courts were to avoid "conceptualistic" interpretations of the res ipsa loquitur doctrine that might unduly restrict the "jury's power to draw inferences from facts." Jesionowski, 329 U.S. at 457. The Fifth Circuit, in Dugas v. Kansas City Southern Railway Lines, 473 F.2d 821 (5th Cir.), cert. denied, 414 U.S. 823 (1973), elaborated on the Supreme Court's caution. It noted that, in Jesionowski, the Supreme Court permitted the application of the doctrine even when there was some evidence that the plaintiff's participation in the employer's activity might have produced the accident. The Fifth Circuit's discussion of Jesionowski is instructive:
In that case a brakeman, while in the process of switching cars, was killed when a car was derailed, throwing him to his death. The Court of Appeals for the First Circuit had held that res ipsa loquitur could not be invoked in an extraordinary accident growing out of a set of circumstances which included activity of the injured person. Evidence on behalf of the railroad was sufficient to authorize, but not compel, a jury finding that the derailment was caused by the negligence of the deceased in handling the switch. There was other evidence from which a jury could have found that the derailment was caused by a defect in a frog operated with a spring mechanism. This was disputed by evidence to the effect that the frog and switch were in good condition both before and after the derailment.
Subsequent to a discussion of the general principles applicable to the use of res ipsa, the Supreme Court held that the rule as applied by the First Circuit
. . . would bar juries from drawing an inference of negligence on account of unusual accidents in all operations where the injured person had himself participated in the operations, even though it was proved that his operations of the things under his control did not cause the accident. This viewpoint [un]duly restricts the power of juries to decide questions of fact, and in this case the jury's right to draw inferences from evidence and the sufficiency of that evidence to support a verdict are Federal questions. A conceptualistic interpretation of res ipsa loquitur has never been used by this Court to reduce the jury's power to draw inferences from facts. Such an interpretation unduly narrows the doctrine as this Court has applied it. Dugas, 473 F.2d at 824-25 (quoting Jesionowski, 329 U.S. at 457).
In short, the Supreme Court took the view that a jury can be instructed first to determine whether the plaintiff's conduct was a contributing factor to the accident. If the jury finds that the plaintiff's conduct did not contribute to the accident, it then can employ the doctrine of res ipsa loquitur to determine whether the accident was caused by the employer. *fn4 Later, however, the Supreme Court emphasized that this approach was designed for the situation in which it was clear that the occurrence, absent the possible negligence of the plaintiff, was extraordinary in nature, not a usual happening, and therefore subject to the inference that it "occurred as a result of negligence." Herdman v. Pennsylvania R.R. Co., 352 U.S. 518, 520 (1957). "The rule deals only with permissible inferences from unexplained events." Johnson v. United States, 333 U.S. 46, 49 (1948).
We now apply these general principles to the record before us.
Ms. Robinson contended at trial that her injury was caused by the abnormally severe slack action that occurred while she was riding on the ladder of the lead railroad car. She claimed that such rough slack does not occur without either equipment failure or mishandling by a railroad employee and that, as a result, her injury was caused by the negligence of the railroad. Having presented sufficient evidence to support this theory of the case, she submits, the jury should have been given a res ipsa loquitur instruction. *fn5 According to Ms. Robinson, the trial court's refusal to give her requested res ipsa jury instruction was prejudicial, not harmless, error.
When a trial court refuses to give a proposed jury instruction, we review the allegedly erroneous omission of that instruction "with an eye towards the adequacy of the instructions actually given." Kovacich v. Benjamin, 951 F.2d 114, 116 (7th Cir. 1991). Our role in considering jury instruction challenges is limited. See E.E.O.C. v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1283 (7th Cir. 1995). "The submission of inadequate jury instructions requires reversal only if 'it appears that the jury's comprehension of the issues was so misguided that one of the parties was prejudiced.'" Soller v. Moore, 84 F.3d 964, 969 (7th Cir. 1996) (quoting In re CLDC Management Corp., 72 F.3d 1347, 1353 (7th Cir.) (citations omitted), cert. denied, 117 S. Ct. 166 (1996)). To make that determination, we evaluate the jury instructions altogether, as a whole, for their sufficiency in informing the jury correctly of the applicable law.
Our examination of the record in this case reveals that there was an instruction about severe slack action; the jury was instructed that "plaintiff claims that the defendant was negligent because defendant failed to manage and control its train to avoid excessive slack action." R.48-4 at 480. Therefore Ms. Robinson's theory of the case was placed before the jury. See United Airlines, Inc. v. United States, 111 F.3d 551, 555 (7th Cir. 1997) (affirming that district court's rejection of instruction did not deprive jury of statement of critical element in the government's theory of the case); Kovacich, 951 F.2d at 116 ("If the substance of the tendered instruction is sufficiently covered by other instructions, the refusal of such an instruction will not ordinarily constitute error."). In addition, we note that the jury heard extensive details about this central claim during Ms. Robinson's opening and closing statements and in the witnesses' testimony. The jury was well apprised of her theory of the case.
Nor can we conclude that the proposed instruction correctly stated the law of res ipsa loquitur in FELA cases as mandated by the Supreme Court in Jesionowski. It did not require the jury to conclude that the cause of her injury had to be under the defendant's exclusive control and that she, the injured person, had been without fault in the matter. *fn6
Finally, we believe that Ms. Robinson's submission must fail because there was evidence before the jury that permitted its members to conclude that her injury was due to negligence on her part and that the railroad was not negligent. Res ipsa does not apply when the accident could have occurred in the absence of the defendant's negligence. In this case, there was evidence before the jury that Ms. Robinson had positioned herself on the back of the car on which she was riding rather than on the side, the correct position. There was also evidence that there was no unusual slack action as the train came to a stop. Therefore the accident could have occurred without any negligence on the part of the railroad. *fn7
B. Denial of Motion for a New Trial
Ms. Robinson also argued to the district court that the jury verdict was against the manifest weight of the evidence and that the trial court should have granted her motion for a new trial. "The district court may grant a new trial 'only where the verdict is against the clear weight of the evidence, and we will reverse the district judge's decision only where there is a clear abuse of discretion.'" Trzcinski v. American Cas. Co., 953 F.2d 307, 315 (7th Cir. 1992) (quoting M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1407 (7th Cir. 1991)). As long as there is a reasonable basis in the record to support it, we will not overturn a jury's verdict.
In this case, Ms. Robinson was the only witness who testified that the railroad was negligent. The inconsistencies between her testimony and the testimony of other witnesses allowed the jury to parse the facts, to weigh the credibility of each witness and to disregard the testimony it found less credible or incredible. This role of fact assessing and credibility weighing is clearly within the province of the jury. After our review of the evidence, we agree that there is a reasonable basis in the record for the jury verdict. See Maier v. Lucent Techs., Inc., 120 F.3d 730, 738 (7th Cir. 1997). The district court did not abuse its discretion by denying the motion for a new trial.
For the reasons we have discussed above, *fn8 we affirm the judgment of the district court.
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Problem Set 1-4
Question;Problem Set-1;1. Suppose;a bank offers to lend you $10,000 for 1 year on a loan contract that calls for;you to make interest payments of $250.00 at the end of each quarter and;then pay off the principal amount at the end of the year. What is the effective annual rate on the loan?;2. Your;sister turned 35 today, and she is planning to save $7,000 per year for;retirement, with the first deposit to be made one year from today. She will invest in a mutual fund that's;expected to provide a return of 7.5% per year.;She plans to retire 30 years from today, when she turns 65, and she;expects to live for 25 years after retirement, to age 90. Her first withdrawal will be made at the end;of her first retirement year. Under these assumptions, how much can she spend;each year after she retires?;3. Suppose;you borrowed $15,000 at a rate of 8.5% and must repay it in 5 equal;installments at the end of each of the next 5 years. How much would you still owe at the end of;the first year, that is, after you have made the first payment?;4. You;want to go to Europe 5 years from now, and you can save $3,100 per year;beginning one year from today. You plan;to deposit the funds in a mutual fund that you think will return 8.5% per year. Under these conditions, how much would you;have 5 years from now?;5. Bank;A pays 4% interest compounded annually while bank B pays 3.5% compounded daily.;Which bank would you choose to deposit your money and why?Problem Set-2;1. O'Brien;Ltd.'s outstanding bonds have a $1,000 par value, and they mature in 25;years. Their nominal yield to maturity;is 9.25%, they pay interest semiannually, and they sell at a price of;$975. What is the bond's nominal coupon;interest rate?;2. The;Pennington Corporation issued bonds on January 1, 1987. The bonds were sold at;par, had 12% annual coupon, paid semi-annually, and mature on December 31;2016.;a) What;was the Yield-to-Maturity (YTM) on the date the bonds were issued?;b) What;was the price on January 1, 1992, assuming interest rates have fallen to 10%?;c) Find;the current yield, capital gains/losses yield and total yield on January 1;1992?;3.;McCue;Inc.'s bonds currently sell for $1,250.;They pay a $120 annual coupon, have a 15-year maturity, and a $1,000 par;value, but they can be called in 5 years at $1,050. What is the bond's Yield to Maturity and its Yield;to Call?;4.;Cosmic;Communications Inc. is planning two new issues of 25-year bonds. Bond Par will be sold at its $1,000 par;value, and it will have a 10% semiannual coupon. Bond OID will be an Original Issue Discount;bond, and it will also have a 25-year maturity and a $1,000 par value, but its;semiannual coupon will be only 6.25%. If;both bonds are to provide investors with the same effective yield, how many of;the OID bonds must Cosmic issue to raise $3,000,000?;5.;A;25-year, $1,000 par value bond has an 8.5% annual coupon. The bond currently sells for $875. If the yield to maturity remains at its;current rate, what will the price be 5 years from now?Problem Set-3;1. A;mutual fund manager has a $40 million portfolio with a beta of 1.00. The risk-free rate is 4.25%, and the market;risk premium is 6.00%. The manager;expects to receive an additional $60 million which she plans to invest in;additional stocks. After investing the;additional funds, she wants the combined;fund?s required return to be 13.00%.;What must the average beta of the new stocks be to achieve the required;rate of return of 13%?;2. Stock;A has a beta of 1.30, and its required return is 12.00%. Stock B's beta is 0.80. If the risk-free rate is 4.75%, what is the;required rate of return on stock B?;3. Suppose;you have a diversified portfolio consisting of $10,000 investment in each of 10;different stocks. The portfolio?s beta is 1.12. You are considering selling;$10,000 worth of one stock with a beta of 1.0 and using the proceeds to buy;another stock with a beta of 1.14. What is the new beta of portfolio after;these transactions?;4. Assume;that you manage a $10 million mutual fund that has a beta of 1.05 and a 9.50%;required return. The risk-free rate is;4.20%. You now receive another $5;million, which you invest in stocks with an average beta of 0.65. What is the required rate of return on the combined;$15million portfolio?;5. Stock;A, an average stock, has an expected return of 10 percent. Stock B has a beta;of 2.0. Portfolio P is a two-stock;portfolio, where part of the portfolio is invested in Stock A and the other;part is invested in Stock B. Assume that;the risk-free rate is 5%. Portfolio P;has an expected return of 12 percent.;What proportion of Portfolio P consists of Stock B?Problem Set-4;1. Ewald;Company?s current stock price is $36 and its last dividend was $2.40. The;required rate of return is 12%. If dividends are expected to grow at a constant;rate g;in the future, what is Ewald?s stock price 5;years from now?;2. Martell;mining company?s ore reserves are being depleted, so its sales are falling.;Also, because its pit is getting deeper each year, its costs are rising. As a;result, the company?s earnings and dividends are declining at the constant rate;of 5% year. If D0=$5 and K i.e. Rs =15%, what;is the value of Martell mining?s stock?;3. The;Price of Consolidated inc. is now 75. The company pays no dividends. Ms. B;expects the price three years from now to be $100 per share. Should Ms. B buy;Consolidated stock if she requires a 10% rate of return?
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Sci fi/Fantasy image byMeredith Bailey
Eh, so it's not the most original title. But it's descriptive. The symbols on her belt are Air, Fire, Earth and Water. The other symbols are anything you wish to make of them! 8.5' x 6.5', mechanical pencil on printer paper, c. February 2001
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Eastern Shore
Marine Forecast
Issued 10:00 AM AST 04 December 2016
Today Tonight and Monday
Wind northwest 20 to 25 knots diminishing to northwest 15 to 20 early this evening and to northwest 10 to 15 late overnight. Wind diminishing to light Monday afternoon.
Showers or a few flurries ending this evening.
Temperatures near plus 1.
Issued 05:00 AM AST 04 December 2016
Today Tonight and Monday Seas 1 to 2 metres subsiding to 1 or less Monday morning.
Extended Forecast
Issued 03:00 AM AST 04 December 2016
Tuesday Wind northwest 20 knots.
Wednesday Wind light.
Thursday Wind south 15 knots increasing to west 25.
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Ice ForecastsIssued 10:00 AM EDT 25 May 2016 Forecasts have ended for the season.
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Iceberg LimitIceberg limit at 0000 UTC 5 Dec estimated from Newfoundland near
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5400W to 5700N 5000W then eastwards.
Western iceberg limit at 0000 UTC 5 Dec estimated from Quebec near
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Iceberg CountNo confirmed icebergs.
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Technical Marine SynopsisIssued 10:00 AM AST 4 December 2016 Today Tonight and Monday At 10:00 a.m. AST today ridge located on a line north-south over
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Fondsenwerving Ambachten
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How to make a personalised DIY snowman mug. It would make a great gift and is simple to make. Follow these simple instructions.
Creative tea light luminaries


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Smoking-ban advocates say new poll finds support growing
Madison - A coalition of groups that want to ban smoking in public places released a poll today that said 69% of respondents statewide favored that ban, up from 64% one year ago. Twenty-eight percent of respondents opposed the ban in the latest survey, according to the poll.
The Mellman Group poll of 500 likely voters, conducted March 12-16 with a margin of error of plus or minus 4.4%, also shows that majorities of both self-identified Republicans and Democrats support that ban.
Specifically, 73% of those who said they were Democrats, and 68% of self-identified Republicans, said they support a smoking ban, said Nathan Henry of the Mellman Group.
About 21% of Wisconsin residents smoke, officials estimated today. And, a growing number of those smokers -- 45% in the March survey -- support the ban, with 49% of smokers against it. That's an increase from the 34% 'yes' and 64% 'no' responses of smokers to the question when asked last year, according to officials from groups pushing the ban.
Groups who paid for the poll included the American Cancer Society, American Heart Association, American Lung Association, Smoke Free Wisconsin and the Robert Wood Johnson Foundation.
Democratic Gov. Jim Doyle's push for a statewide smoking ban bogged down in the Legislature over proposals to exempt taverns from any ban for up to three years. Failure to reach a compromise on that issue kept it from being voted on in both the state Senate and Assembly.
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- Live stream: Democratic Convention Day 1
- Feingold praises ruling allowing some people to vote without ID
- Third-party groups launch attacks against Ron Johnson
- Democrats "welcome" Ron Johnson return to Wisconsin
The Wisconsin Voter Blog
The Journal Sentinel's Craig Gilbert explores political trends in a purple state.


text: Excess concessional contribution charge The excess concessional contributions (ECC) charge is applied to the additional income tax liability arising due to excess concessional contributions included in your income tax return. The intent of the ECC charge is to acknowledge that the tax is collected later than normal income tax. The charge is payable for the year a person makes excess concessional contributions and applies from the 2013-14 income year onwards. The ECC charge period is calculated from the start of the income year in which the excess concessional contributions were made and ends the day before the tax is due to be paid under your first income tax assessment for that year. The formula for calculating the ECC charge uses a base interest rate for the day plus an uplift factor of 3%. The base interest rate is the monthly average yield of 90-day Bank Accepted Bills published by the Reserve Bank of Australia. This compounding interest formula is applied against the base amount (the additional income tax liability) for each day of the ECC charge period. The ECC charge rates are updated quarterly and listed in the table below. Table 3: Excess concessional contribution charge rates Quarter Annual rate Daily rate October - December 2016 4.76% 0.013005464480874% July – September 2016 5.01% 0.013688524590164% April – June 2016 5.28% 0.014426229508197% January – March 2016 5.22% 0.014262295081967% October – December 2015 5.14% 0.014082191780822% July – September 2015 5.15% 0.014109589041096% April – June 2015 5.36% 0.014684931506849% January – March 2015 5.75% 0.015753424657534% October – December 2014 5.63% 0.015424657534247% July – September 2014 5.69% 0.015589041095890% April – June 2014 5.63% 0.015424657534247% January – March 2014 5.59% 0.015315068493151% October – December 2013 5.60% 0.015342465753425% July – September 2013 5.82% 0.015945205479452% See also: Super contributions – too much super can mean extra tax Non-concessional contributions cap Non-concessional contributions include personal contributions for which you do not claim an income tax deduction. If you have more than one fund, all non-concessional contributions made to all of your funds are added together and counted towards the non-concessional contributions cap. Table 4: Non-concessional contributions cap Income year Amount of cap 2016–17 $180,000 2015–16 $180,000 2014–15 $180,000 2013–14 $150,000 2012–13 $150,000 2011–12 $150,000 2010–11 $150,000 2009–10 $150,000 2008–09 $150,000 2007–08 $150,000 The non-concessional cap for an income year is a multiple of the concessional contributions cap. The new indexed amount is generally available each February. People aged under 65 years may be able to make non-concessional contributions of up to three times their non-concessional contributions cap for the year, over a three-year period. This is known as the 'bring-forward' option. The bring-forward cap is three times the non-concessional contributions cap of the first year. If you brought forward your contributions in 2007–08, it would be 3 x $150,000 = $450,000. Associated earnings rate (for excess non-concessional contributions) Individuals have the option of electing to release non-concessional superannuation contributions made from 1 July 2013 which are in excess of the non-concessional contributions cap for 2013–14 and future income years. An associated earnings amount is calculated to approximate the amount earned from the excess non-concessional contributions while they were held in the superannuation fund. This is included in the individual's assessable income. Table 5: Associated earnings rates Income year Annual rate Associated earnings rate / daily rate 2015–16 9.20% 0.02513661% 2014–15 9.61% 0.02632876% 2013–14 9.66% 0.02646575% See also: Super Contributions – too much super can mean extra tax Transitional arrangement for the non-concessional contributions cap between 10 May 2006 and 30 June 2007 Between 10 May 2006 and 30 June 2007, you could contribute up to $1 million of non-concessional contributions to your super fund. This limit was referred to as the transitional non-concessional contributions cap. If you had more than one fund, all non-concessional contributions made to all your funds were added together and counted towards the cap. However, the following contributions were excluded from the $1 million transitional non-concessional contributions cap: contributions arising from personal injury payments up to $1 million of contributions derived from the disposal of certain small business assets – these contributions were subject to the capital gains tax (CGT) cap. See also: Super contributions – too much super can mean extra tax Last modified: 07 Sep 2016QC 18123


text:
28 October, 2011 10:19AM AEDT
666 Federal Political Panel debates QANTAS and pokie reform
Liberal Senator Gary Humphries and Labor MP Andrew Leigh join Ross Solly for the Canberra Federal Political Panel.
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Issues discussed include whether the Federal Government should get involved in the ongoing QANTAS pay despute; and also Labor's gambling and pokie machines reforms.
Senator Humphries says its hypocritical for the Labor Party to campaign against Pokie Machines while owning clubs in the ACT with pokies, but Andrew Leigh says the issues a bit more complicated.


text:
Flavorful salsas and chutney, listed in the ingredients, bring out the best in this roasted recipe. Pork tenderloin is an easy dish to dress up for company or enjoy on a casual weeknight.
4 servings
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1/2 teaspoon salt
1/4 teaspoon freshly ground black pepper
1 (1-pound) pork tenderloin
1 tablespoon olive oil
Sprinkle salt and freshly ground black pepper over pork tenderloin. Heat a large skillet over medium-high heat. Add olive oil to pan; swirl to coat. Add pork to pan; cook 3 minutes, browning on all sides. Bake pork at 400° for 22 minutes or until a thermometer registers 155° (slightly pink). Let stand 10 minutes before cutting across grain into thin slices. Serve with desired salsa or chutney.
Created date
July 2009
Nutritional Information
Calories 170
Fat 7.5 g
Satfat 1.9 g
Monofat 4.1 g
Polyfat 0.7 g
Protein 24 g
Carbohydrate 0.1 g
Fiber 0.0 g
Cholesterol 67 mg
Iron 1.3 mg
Sodium 338 mg
Calcium 6 mg


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January 3, 2006
MARK A. WOOLLEY, PETITIONER,v.DONNA ASHBRIDGE, ET AL., RESPONDENTS.
I. Introduction
Petitioner, Mark Woolley, currently a patient at the State Hospital in Danville, Pennsylvania, commenced a pro se civil rights action (Civil Action No. 3:03-CV-1031) pursuant to the provisions of 42 U.S.C. § 1983, which the Court summarily dismissed on screening. Petitioner filed an appeal of the dismissal, and while the appeal was pending, he filed a petition for writ of habeas corpus, which was erroneously docketed in the civil rights case. Subsequently, the error was discovered, and this Court issued an Order (Civil Action No. 3:03-CV-1031, Doc. 31) directing the Clerk of Court to strike the petition from the civil rights action and open a new habeas corpus case to a new docket number. Pursuant to that Order, the Clerk of Court opened the instant action as a petition for writ of habeas corpus; since Petitioner is challenging his continued detention pursuant to an order of a state court, it was opened as a habeas petition filed pursuant to the provisions of 28 U.S.C. § 2254. Respondents are the Commonwealth of Pennsylvania, the Pennsylvania Department of Welfare, and three individuals: Donna Ashbridge, Pat Paquara, and Robert Bruenes. The Court issued a show cause order, Respondents filed an answer to the petition with Exhibits (Doc. 25), and the answer was not traversed. The matter is ripe for disposition. For the following reasons, the petition will be denied.
II. Background
The following allegations, set forth in Respondents' answer to the habeas petition, are accepted by the Court as true.*fn1 Petitioner is currently involuntarily held at Danville State Hospital ("Danville") pursuant to a civil commitment Order obtained in proceedings under Pennsylvania's Mental Health Procedures Act ("MHPA"), 50 Pa.C.S. § 7301, et seq. (Doc. 25, Ex. A at 1, ¶ 1.) His current treatment at Danville began after he displayed aggressive behavior while a patient at Clarion Psychiatric Center, and he was taken into custody pursuant to a petition filed under § 304 (c) (50 Pa.C.S. § 7304(c)) of the MHPA. Petitioner has been hospitalized several times in the past, including stays in Pennsylvania at Clarion Psychiatric Center, The Meadows, and Warren State Hospital, as well as hospitalization in Ohio, Kansas, Colorado, and California. (Id., ¶ 3.) He has been diagnosed as having schizophrenia, paranoid type; continuous polysubstance abuse; personality disorder; hyperlipidemia; chronic headache; chronic mental illness; and "lack of insight." (Id. at 4, ¶ 7.)
Petitioner is seeking his immediate release from Danville, claiming ineffective assistance of counsel and denial of due process. Specifically, he raises the following issues:
[1.] Does Petitioner's confinement in Danville State Hospital remain an (sic) unconstitutional in violation of [his] 14th amend (sic) rights;
2. Was petitioner afforded ineffective assistance of counsel;
3. Does Petitioner's continual incarceration remain a violation of [his] 14th amend (sic) substantive due process rights;
[5.] Does Petitioner's continual confinement remain in violation of [his] 14th amend (sic) substantive due process;
[6.] Does Petitioner's unconstitutional confinement remain a violation of [his] 14th amend (sic) due process;
7. Is Petitioner's unconstitutional confinement remain in violation of [his] 14th amend (sic) equal protection of the laws. (Doc. 1 at 4-5.)
III. Discussion
A. Scope of Review
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), enacted on April 24, 1996, revised the standard of review for cases challenging state court judgments pursuant to 28 U.S.C. § 2254. Dickerson v. Vaughn, 90 F.3d 87, 89 (3d Cir. 1996) (citing Antiterrorism and Effective Death Penalty Act, Pub. L. 104-132, Title I, sec. 104, 110 Stat. 1214 (1996)). Section 2254(d), as amended, states as follows:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
The "contrary to" provision contained in § (d)(1) is evaluated as follows:
[T]he inquiry must be whether the Supreme Court has established a rule that determines the outcome of the petition. Accordingly, we adopt O'Brien's holding that "to obtain relief at this stage, a habeas petitioner must show that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court." In other words, it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome.
Matteo v. Superintendent, SCI -Albion, 171 F.3d 877, 888 (3d Cir. 1999) (quoting O'Brien v. Dubois, 145 F.3d 16, 24-25 (1st Cir. 1998)). The appropriate standard for the "unreasonable application" clause is whether the state court's application of Supreme Court precedent was objectively reasonable. The federal habeas court should not grant the petition unless the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent. . . . [T]he primary significance of the phrase "as determined by the Supreme Court of the United States" is that federal courts may not grant habeas corpus relief based on the state court's failure to adhere to the precedent of a lower federal court on an issue that the Supreme Court has not addressed. Thus, in certain cases it may be appropriate to consider the decisions of inferior federal courts as helpful amplifications of Supreme Court precedent.
Matteo, 171 F.3d at 889-90 (emphasis added).
Section 2254(e)(1) contains the presumption of correctness provision that greatly heightens the degree of deference paid to a state court's findings of fact. The burden is on the Petitioner to rebut the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Ultimately, after application of the standards set forth above to the issues set forth in the petition, it cannot be said that the state courts have come to an improper conclusion.
B. Pennsylvania's Mental Health Procedures Act
Under the MHPA, "whenever a person is severely mentally disabled and in need of immediate treatment, he may be subject to involuntary emergency examination and treatment." 50 Pa.C.S. § 7301(a). Under the MPHA, a person is mentally disabled when, as a result of mental illness, "his capacity to exercise self-control, judgment and discretion in the conduct of his affairs and social relations or to care for his own personal needs is so lessened that he poses a clear and present danger of harm to others or to himself." Id. Upon personal observation of conduct constituting reasonable grounds to believe that a person is severely mentally disabled and in need of immediate treatment, any physician, peace officer, or anyone authorized by the county administrator may take such person to an approved facility for an emergency examination without first obtaining an arrest warrant. Id. at § 7302(a)(2). Upon arrival, the witness shall make a written statement setting forth the grounds for believing the person to be in need of such examination. Id.
An emergency detention cannot exceed 120 hours in duration. Id. at § 7302(d). A person subjected to an emergency detention may be held beyond this period if the facility holding the person files an application with the court of common pleas to extend the period of involuntary detention. Id. at § 7303(a). If the facility files such an application, the detained person shall be afforded the benefit of counsel. Id. at § 7303(b). A judge or a mental health review officer will hold an informal hearing to determine whether the person's condition is such that an additional period of involuntary commitment is required. Id. at § 7303(c). That hearing must take place within twenty-four hours after the filing of the application for extended detention. Id. at § 7303(b). If the judge or mental health review officer determines that extended detention is warranted, he may order an additional period of twenty days involuntary inpatient treatment. Id. at § 7303(h). If continued detention is ordered by a mental health review officer, rather than a judge, the person subject to the extended detention may petition the court of common pleas for the county in which he is located to review the findings of the mental health review officer. Id. at § 7303(g).
The county administrator or the director of the facility in which the person is being treated may apply to have the person detained an additional ninety (90) days by filing a petition with the court of common pleas. Id. at § 7304(b). The petition must be in writing, and the petitioner must serve a copy on the detainee or his attorney. Id. at § 7304(b)(2). Within five (5) days of the filing of such petition, a judge or a mental health review officer must conduct a hearing to determine if continued detention is required. Id. at § 7304(e)(6). At such a hearing, the involuntary patient has the right to be represented by counsel, to refuse to testify, to cross-examine all witnesses, and to present evidence on his own behalf. Id. at § 7304(e). If, at the conclusion of the hearing, the judge or the mental health review officer determines that continued detention is warranted based on the fact that the detainee is still mentally disabled, the presiding officer may order continued inpatient treatment for a period not exceeding ninety (90) days. Id. at § 7304(g). Upon petition by the county administrator or the director of the facility in which the detainee is being treated, the court of common pleas may order additional 180 day periods of involuntary treatment upon a finding, by a judge or a mental health review officer, that the detainee is still mentally disabled. Id. at § 7305(a). The hearing on such a petition is identical to that for a ninety day period of involuntary commitment. Id. at § 7305(b); see also § 7304.
C. Petitioner's Commitment
As previously stated, Petitioner claims that his continued detention violates his Fourteenth Amendment rights to due process and he was denied effective assistance of counsel.
i. Due Process Claim
There are two types of due process claims under the Fourteenth Amendment: procedural and substantive.*fn2 To state a valid procedural due process claim, Petitioner must establish state sponsored deprivation of a protected interest in life, liberty, or property. See Zinermon v. Burch, 494 U.S. 113, 125 (1990). If such an interest has been, or will be deprived, procedural due process requires that the governmental unit provide the individual with notice and a reasonable opportunity to be heard. Midnight Sessions, Ltd. v. City of Philkadelphia, 945 F.2d 667, 680 (3d Cir. 1991)(quoting Cleveland Bd. Of Educ. V. Loudermill, 470 U.S. 532, 542 (1985)).
In this case, Petitioner has clearly been denied an interest in his liberty as he is currently being detained against his will. See Foucha v. Louisiana, 504 U.S. 71, 80 (1992) ("Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.") However, this does not end the analysis. As stated above, no procedural due process violation stands if the governmental unit provides the individual with notice and a reasonable opportunity to be heard. See Midnight Sessions, 945 F.2d at 680. Petitioner does not set forth any evidence of such deprivation in the record, and the Court is unable to locate any support for Petitioner's assertions.
Petitioner is challenging his continued detention pursuant to a hearing under Section 305 of the MPHA. Upon petition by the county administrator or the director of the facility in which the detainee is being treated, the court of common pleas may order additional 180 day periods of involuntary treatment upon a finding, by a judge or a mental health review officer, that the detainee is still mentally disabled. Id. at § 7305(a). The hearing on such a petition is identical to that for a ninety day period of involuntary commitment. Id. at § 7305(b); see also § 7304. The petition must be in writing, and the petitioner must serve a copy on the detainee or his attorney. Id. at § 7304(b)(2). Within five (5) days of the filing of such petition, a judge or a mental health review officer must conduct a hearing to determine if continued detention is required. Id. at § 7304(e)(6). At such a hearing, the involuntary patient has the right to be represented by counsel, to refuse to testify, to cross-examine all witnesses, and to present evidence on his own behalf. Id. at § 7304(e). If, at the conclusion of the hearing, the judge or the mental health review officer determines that continued detention is warranted based on the fact that the detainee is still mentally disabled, the presiding officer may order continued inpatient treatment for a period not exceeding 180 days. Id. at § 7304(g).
A review of the record supports a conclusion that Petitioner received the procedure outlined in the statute. Petitioner had judicial review and approval of detention for progressively extended periods (Doc 25, Exs. B-D), and in his challenged commitment he was given notice of intent to file a petition under section 305 for extended involuntary commitment of up to 180 days, signed by a mental health worker (Doc. 1-2). The petition indicates that Woolley was examined by Dr. H. DeAntonio, M.D. and was found to be in need of treatment. The petition states that Wooley "sometimes says he is talking to 'invisible friends,' he believes he is a lawyer, . . . [he] does not display insight regarding his illness and need for psychiatric treatment, and at present requires continued inpatient treatment." (Id. at 5.)
Woolley's pleadings do not lend support to his claims. They are generally disjointed and barely legible, and they are typically comprised of a broad spectrum of rambling, disjointed, and unrelated discourses. Although the Petitioner raises some potentially valid habeas issues, nothing in the record supports a conclusion that the state court decision was contrary to clearly established federal law or based upon an unreasonable application of the facts of the case. Therefore, Petitioner has not met his burden on the due process claim, and the claim will be denied.
ii. Ineffective Assistance of Counsel
Petitioner also claims that he received ineffective assistance of counsel. The controlling United States Supreme Court case on the issue of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). The Strickland Court determined that the proper standard for attorney performance is that of reasonably effective assistance. Id. at 687. Under this first prong, [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.
Id. at 689 (citations omitted). As for the second prong, the defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88, 694. Ultimately, Petitioner cites nothing in the record, nor has the Court seen any evidence in the record, to support Petitioner's bare assertion of inefective assistance of counsel. He does not reference any decisions, strategies, or omissions that resulted in any adverse impact on the case. Therefore, Petitioner's ineffective assistance claim will be denied as well. An appropriate Order follows.
ORDER AND NOW, THIS 3rd DAY OF JANUARY, 2006, in accordance with the foregoing memorandum, IT IS HEREBY ORDERED THAT:
1. The petition for writ of habeas corpus (Doc. 1) is DENIED.
2. The Clerk of Court is directed to mark this case closed.
3. Based upon the Court's conclusion herein, there is no basis for the issuance of a certificate of appealability.
4. Petitioner's motions for summary judgment (Docs. 22 and 31) are DENIED for failure to contain an statement of undisputed facts as required by M.D.Pa.L.R. 56.1.
A. RICHARD CAPUTO United States District Judge
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MotoGP2 User Reviews
Sim mode rulesZ!!The good:
Simulation mode.The bad:
Hardly any rider AI.
Can't u turns.
Riders don't fall off when you run into them...you have to hit them really hard to make them crash.
Pretty challenging game!
My Tip: Play Simulation mode, manual Transmission, Full Race all weather conditions. Don't play arcade mode it just makes motoGP look like a dull racer. Even for those new to motoGP...play sim mode. I've met people who played the game thought it sucked. They only played it on arcade mode which explains their reason for not liking it. They're playing sim mode now and think its one of the better racer out there.
MOTO GP 2The good:
Brilliant deatails, an all round great gameThe bad:
to few tracksSummary:
this is a great game but has to few tracks. The season mode on hard is great as you start off at one of the three lower bikes and work your way to the best season by season
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Joy Sushi Asian Bistro
A casual and affordable all-you-can eat Japanese restaurant, offering an extensive menu including sushi, tempura, and sashimi.
A casual and affordable all-you-can eat Japanese restaurant, offering an extensive menu including sushi, tempura, and sashimi.
This casual Mexican spot serves up a crispy chile rellenos, great green chile, and margaritas.
This homestyle Italian restaurant serves up classics like jumbo shells, chicken Parmesan, and manicotti.
Traditional Mexican cuisine with a distinct modern flair served in a casual atmosphere. Also try the Northfield location.
In addition to the house-made selection of white chocolates, enjoy classic American fare, such as grilled salmon or balsamic rib-eye.
This restaurant satisfies with Italian as well as steak house fare. Begin a meal with shrimp or roasted red pepper bruschetta, then dig into steaks, chops, or seafood.
With 50 wines by the glass and 250 more by the bottle, the greatest challenge at this chic locale is narrowing your choices. Try the pan-seared scallops or Australian lamb.
An upscale Asian restaurant serving classics such as kung pao chicken as well as specialty dishes like ginger scallion shrimp. Also, serving sushi.
Fast-casual restaurant offering wood-fired Neapolitan pizzas, entree salads, and undiscovered Italian wines. On Sunday kids eat for $2.
Serving a variety of homemade American classics. Other locations in Aurora, Broomfield, Golden. Loveland, Westminster, and Colorado Springs.


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State-owned Chinese group Tsinghua prepares $23 billion bid for U.S chipmaker Micron
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Jul 28, 2009
From Housing Wire: Lenders, Realtors Divided on Arizona Foreclosure Law
28 Jul 2009
Posted by VAR
Realtors and bankers are gearing up for a battle over Arizona legislation that would allow lenders to sue homeowners for losses incurred from a foreclosure.
The change to the state's so-called "deficiency judgment" law requires a borrower to live in the home for six months to be eligible for protection from lender-initiated lawsuits to recoup the full outstanding principal of a mortgage.
Proponents of the law, including bankers that lobbied for the change, believe it will discourage investors from walking away from properties when they can't make a profit.
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Illinois Appellate Court
May 19, 1998
IN RE A.M., A MINOR (THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PETITIONER,v.G.M., RESPONDENT (PATRICK T. MURPHY, GUARDIAN AD LITEM ON BEHALF OF A.M., APPELLANT))
A.M., a minor female, was the subject of a child abuse and neglect proceeding under the Juvenile Court Act of 1987 (Act) (704 ILCS 405/1-1 et seq. (West 1992)). At an adjudicatory hearing in the proceeding, the parties stipulated that A.M. had been sexually abused and neglected by being exposed to an injurious environment. The stipulation and admitted evidence identified, by name, the perpetrator of the sexual abuse as the paramour of A.M.'s mother. The court denied the request of the State's Attorney and the guardian ad litem to make a judicial finding naming the perpetrator, reasoning that to do so would violate the perpetrator's due process rights. On appeal, A.M., through her guardian ad litem, argues that the trial court erred in refusing to name the perpetrator of sexual abuse, as he was a nonparty to the proceeding whose due process rights were, therefore, not implicated.
A.M. is an 11-year-old girl who was the subject of a child abuse and neglect proceeding. On October 7, 1996, the Illinois Department of Children and Family Services (DCFS) filed petitions for adjudication of wardship on behalf of A.M. and her two older siblings. That same day, the juvenile court Judge granted temporary custody of the three children to the DCFS guardianship administrator without prejudice to their mother, G.M.
On October 8, 1996, the circuit court held a contested temporary custody hearing. The court heard evidence of the outcry statements that A.M. had made to her school officials and to others in a victim- sensitive interview. In this interview, A.M. described fondling, exposure, and digital and penile penetration by her mother's paramour, G.R. The court also heard evidence of the findings of the Pediatric Ecology Program of Grant Hospital, where A.M. had been evaluated. Finally, the court heard testimony regarding A.M.'s relationships with her family members.
At the Conclusion of the hearing, the court found probable cause to believe that the children had been abused or neglected, but it found no urgent and immediate necessity to support their removal from G.M.'s custody. The court entered an order of protection against the mother, requiring, inter alia, that G.M. ensure that her children have no contact with her former paramour, G.R.
In January 1997, a stipulated trial as well as a Dispositional hearing were held. The parties agreed to facts establishing that A.M. had been sexually abused by G.R. The court ultimately made the following findings with respect to A.M.:
"[A.M.] has been both neglected and abused having been exposed to an injurious environment, which under Illinois law is neglect[,] and having been the victim of sexual abuse, which under Illinois law is abuse. I'm not naming a perpetrator of that abuse because the allegation is that it was a paramour of [the] mother; and, while that paramour is named, it is my feeling that it would be denial of his due process rights to make such a finding since he is not permitted to participate in these proceedings ***. He had been asked to leave. He is not a party to these proceedings and can present no response to the allegations; and, because of that, *** I believe it would be denial of due process under the United States [and] Illinois Constitution[s] to make that finding, to name him as a perpetrator."
In addition, the court found that A.M.'s siblings were neglected based on living in an injurious environment. Consequently, the Dispositional hearing concluded with the court's adjudication of the children as wards of the court and its order stating that the children remain in G.M.'s custody under an order of protection with terms identical to the previous order of protection prohibiting G.M. from allowing any contact between G.R. and her children.
At the above adjudicatory hearing, the guardian ad litem asked the court to reconsider its decision not to make a finding that specifically named G.R. as the perpetrator of the sexual abuse. The trial court once again denied the request on reconsideration, reiterating its concern over a possible due process violation. The guardian ad litem made an additional request to reconsider this issue by written motion. The court heard and denied that motion on March 5, 1997. The guardian ad litem brings this appeal from the trial court's order refusing to name the perpetrator of sexual abuse in its findings and the denial of A.M.'s posttrial motion to reconsider.
We affirm.
Initially, we note that only an appellant's brief has been filed and that, due to the non-adversarial nature of the instant child abuse and neglect proceedings, there is no appellee before the court. The record before us, however, is simple, and the trial errors claimed by appellant are such that we can render a decision based upon appellant's brief alone. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976); Mostafa v. City of Hickory Hills, 287
Ill. App. 3d 160, 168, 677 N.E.2d 1312, 1318 (1997).
The guardian ad litem contends that the trial court erred by failing to make a specific finding naming the perpetrator of sexual abuse. As a rule, a trial court's decision as to whether certain findings should be made is within the court's sound discretion and will be altered only upon a showing that the court abused its discretion. See In re Marriage of McHenry, 292 Ill. App. 3d 634, 639, 686 N.E.2d 670, 674 (1997); People v. Warner, 146 Ill. App. 3d 370, 383, 496 N.E.2d 1010, 1019 (1986) (trial court did not abuse its discretion by failing to make specific finding as to defendant's rehabilitative potential, where such a finding was not required).
McHenry is instructive. In McHenry, a divorce proceeding, the trial court did not make a specific valuation of certain marital property before distribution. The petitioner contended on appeal that the absence of such a finding constituted reversible error. The appellate court, however, stated: "we do not find that the trial court abused its discretion, where it had ample evidence upon which it could have based its distribution, and no specific valuation of marital assets was mandated." McHenry, 292 Ill. App. 3d at 639, 686 N.E.2d at 674.
Similarly, in the case sub judice, we do not believe that the trial court abused its discretion by declining to specifically name the perpetrator of the sexual abuse in its judicial findings. Our review of the record establishes that the trial court made sufficient findings in accordance with section 2-21(1) of the Act, which states in pertinent part:
"After hearing the evidence the court shall determine whether or not the minor is abused, neglected, or dependent. *** The court's determination of whether the minor is abused, neglected, or dependent shall be stated in writing with the factual basis supporting that determination." 705 ILCS 405/2-21(1) (West 1994).
In our view, the trial court's findings that A.M.'s neglect and abuse were due to her exposure to an injurious environment and sexual abuse constituted sufficient factual bases for its determinations. Additional specific findings are unnecessary to render valid a determination of neglect or abuse. Moreover, such specific findings are not mandated by section 2-21 of the Act. Furthermore, while we recognize the myriad child abuse and neglect cases in which trial courts make findings naming the abusers, those cases involve perpetrators who are parents, guardians, legal custodians, or relatives and, therefore, named parties properly before the court. Significantly, appellant has cited no case wherein an abuser was not a party to a child abuse and neglect proceeding but was, nonetheless, named as the perpetrator in the adjudicatory order.
The appellant also argues that, notwithstanding the existing order of protection, it is in the best interest of the minor that the trial court make a specific finding in the adjudicatory order that G.R. is the perpetrator of sexual abuse. We disagree. In our view, a specific finding in the adjudicatory order is unnecessary to protect the minor, because G.R. has already been named frequently throughout the proceedings and was named in the original and final orders of protection. Indeed, the trial court specifically ordered in its supplemental protective order conditions that, "[s]hould [named perpetrator] make contact with or attempt to make contact with the mother or minors, the mother shall contact the DCFS or private agency caseworker and the local police department." Therefore, the perpetrator is sufficiently known, and naming him as the sexual abuser in the adjudicatory findings is not needed to ensure proper and continued enforcement of the order of protection.
The guardian ad litem further contends that the trial court erred by refusing to name G.R. as A.M.'s sexual abuser in its findings, because the Act neither confers party status on a paramour of a child's parent nor establishes any right of a paramour in the proceedings who is not the object of an order of protection. The guardian ad litem partially bases its argument upon section 2-25(7) of the Act, which provides in relevant part:
"A person against whom an order of protection is being sought who is neither a parent, guardian, legal custodian or responsible relative *** is not a party or respondent ***. Such person does not have a right to appointed counsel or to be present at any hearing other than the hearing in which the order of protection is being sought or a hearing directly pertaining to that order. Unless the court orders otherwise, such person does not have a right to inspect the court file." 705 ILCS 405/2-25(7) (West 1992).
The guardian ad litem concludes that, because G.R. had no standing or right to appear before the trial court in A.M.'s case, he had no due process rights at stake. Due process of law is a fundamental right. People v. Cooper, 132 Ill. 2d 347, 365 (1989), citing Illinois Crime Investigating Comm'n v. Buccieri, 36 Ill. 2d 556, 560 (1967). If a determination of the personal liability of a defendant is involved, the defendant must be brought within the state's jurisdiction by proper service of process or the defendant's voluntary appearance. East St. Louis Federation of Teachers, Local 1220 v. East St. Louis School District No. 189 Financial Oversight Panel, 178 Ill. 2d 399, 419-20 (1997), citing Mathews v. Eldridge, 424 U.S. 319, 333, 47 L. Ed. 2d 18, 32, 96 S. Ct. 893, 902 (1976).
Significantly, however, no proceedings were undertaken by the State in the instant case to obtain an order of protection against G.R. Rather, the proceedings were undertaken to obtain an order of protection against A.M.'s mother, G.M., requiring that G.M. ensure that her children have no contact with her former paramour, G.R. Since no proceedings were undertaken in this case to obtain an order of protection against G.R., it is our view that G.R.'s procedural due process rights were not triggered simply by being identified as A.M.'s aggressor in the evidence and in the order of protection issued against G.M. The child neglect and abuse proceedings at issue were non-adversarial and non-criminal in nature. A.M.'s mother, and not G.R., was the object of the resulting order of protection, and G.R. was not charged with any criminal offense.
We are mindful, however, that the Act does empower the State to seek and obtain an order of protection against a paramour and that, where an order of protection is sought against a paramour, that individual has the right to be present and to be heard. 705 ILCS 405/2- 25(7) (West 1992). We do not know why the State elected not to seek an order of protection against G.R., the paramour, in this case. We note that, although the State elected not to implicate the paramour's procedural due process rights by not seeking an order of protection against him, the State has adopted the appellant's brief in the instant appeal. Yet, one consequence of naming G.R. as the perpetrator of sexual abuse in the adjudicatory order is allowing the State to obtain a court adjudication that G.R. has committed an onerous act without affording him an opportunity to be heard.
G.R. is not a party. He does not have a right to be heard. Although he has been named in an order of protection, no order of protection has been entered against him. The guardian ad litem posits on appeal that a finding in a juvenile court proceeding that G.R. sexually abused the minor would not be an adjudication against him, since "findings in juvenile proceedings are made with respect to the child, not for or against any party." The trial court was fully mindful of the purpose and parameters of juvenile court proceedings and, in denying the guardian ad litem's request on reconsideration to specifically name G.R. as the perpetrator of sexual abuse, the trial court stated in part:
"[W]hile in theory Juvenile Court proceedings are to be private, in fact, as I look out of this private courtroom, I see State's Attorneys; Public Guardians who are not necessarily associated with this case; *** and others who are sitting in this courtroom ***; and, for the Court to make so onerous a finding as to declare that somebody is the perpetrator of sexual abuse to a minor without that party ever having an opportunity and by law being precluded from having an opportunity in these proceedings to in any way respond to those allegations would, as I indicated, be a denial *** of the due process rights of that individual."
" 'The essence of due process is "fundamental fairness." ' " People v. McCauley, 163 Ill. 2d 414, 441 (1994), quoting People ex rel. Burris v. Ryan, 147 Ill. 2d 270, 310 (1991) (Bilandic, J., Dissenting), quoting Lassiter v. Department of Social Services, 452 U.S. 18, 24, 68 L. Ed. 2d 640, 648, 101 S. Ct. 2153, 2158 (1981). In our view, a trial court's finding in the adjudicatory order naming G.R. as the perpetrator of an onerous offense would have, as the trial court indicated, violated the fundamental principles of due process. See also Herrera v. Collins, 506 U.S. 390, 122 L. Ed. 2d 203, 113 S. Ct. 853 (1993); City of Chicago v. Morales, 177 Ill. 2d 440 (1997).
Accordingly, we hold that the trial court did not err by refusing to name G.R. in its judicial findings as the perpetrator of sexual assault. The decision of the trial court is affirmed.
RAKOWSKI and TULLY, JJ., concur.
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Arizona Cardinals Quarterback Rumor of the Day -- Matt Cassel: Yay or Nay?
We're now getting to the point where it's impossible to go 24 hours without hearing a rumor from a legitimate sports reporter involving a quarterback and the Arizona Cardinals.
On Tuesday, the Arizona Republic's Kent Somers said the Cardinals were "exploring the possibility" of trading for San Francisco 49ers quarterback Alex Smith, who was traded to Kansas City yesterday. Don't worry, another rumor has replaced it -- now ESPN's Adam Schefter says the Cardinals may be interested in Matt Cassel, who was the Chiefs' number-one quarterback until yesterday.
See also:
-Cardinals Quarterback Rumor of the Day -- Alex Smith: Yay or Nay?
-Matt Barkley as Arizona Cardinals Quarterback: Yay or Nay?
This off-season, we've polled our readers on three quarterback rumors involving the Cardinals (Cassel's the fourth). Here's how they've turned out:
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For now, though, ESPN's Schefter says, "Look for Matt Cassel to be one of the quarterbacks on the Cardinals' radar. Cassel also will receive interest from other teams."
It's not clear why the Cardinals would ever think Cassel's an appropriate replacement for Kolb. Cassel only played around half the games last season and the season before, mostly due to injury.
Last season -- in which the Chiefs won one game in eight attempts with Cassel as the starting quarterback -- he threw six touchdowns and 12 interceptions.
Cassel hit the bench due to an injury, and even though he was cleared to play several games later, he stayed on the bench, as the Chiefs rolled with Brady Quinn.
So, Cardinals fans, would you want Cassel as the Cards' new quarterback?
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Welcome to the Promotional Thread for Authors. What's this you say? I read quite a few blogs outside the romance blogosphere and many of the big ones have a daily open thread where the commenters drive the bus. The rules for Author Promo Night Open Thread are as follows: The ... more >
Got a book you want to talk about? Frustrated with a book or series? In love with a new one? Found a buried treasure? An issue that keeps popping up in the books you are reading? Just want to chat about stuff in general? Post away.
Well, as usual it's been a dog's age since I've done one of these, and a lot of what I've read I've already reviewed: The Typewriter Girl by Alison Atlee, Unforgivable by Joanna Chambers, Daniel Deronda by George Eliot, When Maidens Mourn by C.S. Harris, Children of Liberty by Paullina Simons, That Scandalous Summer by ... more >
Filmmaker Alfred Hitchcock popularized the term "MacGuffin," using it as shorthand for whatever object put the characters (and the story) in motion. For Hitchcock, the MacGuffin mattered mainly because the characters cared about it enough to go after it–whether the audience precisely understood it was a secondary concern. Today's novels ... more >
Updated: the new commenting policy is explicitly stated above the comment box and an elaboration can be found here. The comments to this post are closed. If you have concerns or isssues with the commenting policy, please address them on the new Commeting Policy page this way the concerns and ... more >
I'm a big fan of New Adult books and so I was excited when Berkley sent me True by Erin McCarthy to read ( A | BN | K | S ). It captured the zeitgeist of the New Adult genre with the college age protagonists and their attempts ... more >
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The Zoning Board of Appeals gathered Wednesday night hoping to discuss the engineering component of the Sharon Commons Lifestyle Center, which would have been phase two in the development process.
The Zoning Board of Appeals gathered Wednesday night hoping to discuss the engineering component of the Sharon Commons Lifestyle Center, which would have been phase two in the development process. Instead, conversation revolved around the adjustments that had been made to phase one since the last meeting.
Tom Houston, a PSC representative responsible for conducting a peer-review of the site, explained to the ZBA that their focus on the engineering aspect of phase two was re-directed upon new information on building shifts and other changes in the site plan.
"A shift of a building by 50 or 100 feet may not be significant in terms of a master plan," Houston said. "But it is very significant because utilities are very site specific. If you have to shift the location of a storm charger, etc., it really makes a difference even if that's only a few feet in a different location."
For this reason, Houston announced their decision to delay further evaluation of the engineering component pending the boards review and approval of the new revisions.
One of the most noticeable changes in the site plan is the move of anchor store number three up near anchor store number two. This move increases the space and natural buffer along Old Post Road and the corner of South Walpole Street where anchor store number two originally sat.
The second change was that the building position of anchor store number two was rotated so that the front of the store is now facing Interstate 95. Anchor store number one was also rotated 90 degrees so that the entrance to the building is now in clear view of customers entering on the main road.
Among the discussion of the new revisions also came the anticipated announcement of the likely retail tenant for anchor store number two.
Attorney Richard Rudman publicized the signing of a non-binding letter of intent with Target for a 135,000 square foot store. Currently, they are focused on completing the site plan and architectural plans for the store to be approved by the ZBA by mid November before they can move forward.
"This is an extremely difficult leasing market and financial market for reasons that [the board] are all well aware of," Rudman explained. "We feel very lucky to be one of a small number of locations where a very solid, credit-worthy anchor tenant that is going to be willing to move forward with us. We don't want to do anything to jeopardize that."
Trent Luger, the developmental manager for Target, shared his primary goal of the potential event of being the new retail tenant for anchor store number two.
"My job is primarily to work with the community and the developer to entitle the project of the shopping center and really create a first-class development in Sharon," he said. "We want a very safe, pleasant shopping experience for our guests."
The construction of Target will provide more than just another outlet for shopping. The store would generate between 150 to 250 new jobs.
"Community giving is really at the heart of what Target is about," Luger said. "We are the only retailer to give back 5 percent of our taxable income to the communities."
When asked about whether or not the Target would have a supermarket component to it, Rudman replied that they are already in discussion with a grocer for anchor store number one.
Despite all of the excitement generated from the discussion about Target, there were still a few concerns to be addressed on the new revisions for the site plan.
One board member pointed out that although the revisions in phase two were a big improvement, there was still a questionable design flaw that remained with anchor store number three. The rotation of anchor store number two and the move of anchor store anchor number three leaves the parking lot behind both stores somewhat isolated, raising safety concerns for both future employees and customers.
Another observation the ZBA made was that the move of anchor store number three up next to anchor store number two could possibly decrease the "strolling potential" because it is now segregated from the line of stores it was originally in line with.
In closing statements, Chairman John Lee once again reminded the developers of Sharon Commons on the initial expectations that the town of Sharon holds for the building of the Lifestyle Center.
"The people in town did not approve a mall. This is specifically a lifestyle mall," Lee said. "We are glad this is moving forward but we want to make sure that it moves forward as a lifestyle mall which is what the people in town were told that they were going to get."
The developers of the Sharon Commons took the ZBA's observations in stride. A mutual agreement was reached that the discussion of engineering plans along with any further approval of new modifications would be made at the next ZBA meeting.


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