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- VS Achuthanandan takes up cudgels against Pepsi plant
Veteran CPM leader V S Achuthanandan said here on Friday that "failure to protect the groundwater resources will be a big injustice to the next generation as water, the life blood of any living thing, is facing acute shortage due to climatic changes and global warming".
- VS to launch Haritha Keralam
Thiruvananthapuram: The corporation level inauguration of Haritha Keralam project will be held at 10am in Chackai on Thursday. Chairman of administrative reforms commission VS Achuthanandan will inaugurate the scheme during a public convention at YMA ground. MLA V S Sivakumar, mayor V K Prashanth, deputy mayor Rakhi Ravikumar, heads of standing committees will attend the function. The plastic collected from 100 wards, as part of the project, will be handed over to corporation at the function. The civic body has selected eight places that will be cleaned on December 13 as part of Haritha Keralam Mission which has a four-pronged strategy including waste management, organic farming, water conservation and environmental conservation. The health wing is planning to clean places that are littered with waste and plant tree saplings in such areas. However, the drive is hardly a solution as almost a year ago corporation had undertaken a similar mission to cover up dumping yards. But with no sustainable solutions for waste management, garbage piles have surfaced again. People have started questioning the efficacy of such drives. "There is no point in cleaning up one day and leaving it open the next. Take for instance the Chackai dumping yard, corporation had cleaned up the area and it was filled with sacks containing slaughter house waste. Apart from petty fines, severe punitive measures should be adopted," said a resident at Chackai. A few months ago, the health wing had zeroed in on major dumping yards in the city and had removed all garbage piles. Flower saplings were planted in such places, however trash heaps have resurfaced over the saplings in these areas and corporation has been unable to carry on the project. "We need the cooperation of people to get these projects running. Unfortunately the awareness levels are low," a health official said. tnn
- Rupee good run continues, gains 19 paise vs US dollar
MUMBAI: The rupee gained 19 paise to 67.44 against the dollar in early trade on Thursday on sustained selling of the US currency by exporters and banks amid a higher opening in the domestic equity market amid foreign fund inflows. This was the third consecutive day of rise for the domestic currency. Forex dealers said weakness in the dollar against other currencies overseas supported the rupee. A higher opening in the domestic equity market gave the uptrend some momentum, they added. On Wednesday, the domestic unit gained 27 paise to end at over three-week high of 67.63 even as the Reserve Bank unexpectedly left policy rates unchanged. Meanwhile, the benchmark BSE Sensex rose 285.05 points, or 1.09 per cent, to 26,521.92 in early session on Thursday.
- Rupee ends flat at 68.21 vs dollar ahead of RBI policy meet
The rupee on Monday settled almost flat with negative bias at 68.21 against the US currency in a restricted trade amid stray dollar demand from importers. Overall forex market sentiment remained cautious ahead of the central bank's policy review on Wednesday and a steep crash in euro.
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Teams 'Red Chillies' and 'Khatarnak Queens' will fight it out to score points and march towards winning 'Kevvu Kabaddi Championship'. The episode of the beautiful television actresses participating in the third semi-final will be aired on Zee Telugu at December 4 at 8.30 pm.
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The Board did not take any decision on the recommendations but it has been learnt from sources that state associations have been told to keep a Plan B ready in case the verdict is not favourable from the apex court.
- Will vs Destiny always captivated my imagination: Preeti Shenoy
NAGPUR: "The concept of Will vs Destiny is something which has always captivated my imagination and my book explores the concept of whether free will can overcome destiny," said renowned author Preeti Shenoy during the launch of her latest book, "It's All in the Planets" at Crosswords, Civil Lines on Thursday. The story revolves around Aniket, a techie and Nidhi, a corporate employee and the two meet on a train, their journey begins from that point onwards, said Shenoy. "The story comprises of a chain of events and each chapter begins with an astrological forecast the relevance of which is revealed at the end of each chapter. The inspiration behind this story, as Shenoy explains, is the concept itself which makes her ponder over it every day. "I have multiple ideas circling in my mind at any given point. But the idea of this story kept coming back to me again and again, so in a way that egged me to explore the concept," said Shenoy. Shenoy claims there are many layers to the story, and arrange marriage is one aspect that was explored. This, she said, is something that a majority can relate to, since many go through the experience in their lifetime. According to Shenoy, Nidhi becomes Aniket's relationship coach who tries to keep up with the demanding nature of his girlfriend, Trish. A very important question one would ask is 'how much are you willing to change for someone you love?', said Shenoy. Shenoy firmly believes in astrology and said it goes along rather well with her concept. "Life is like a game of poker where destiny gives you cards and who you play your cards is up to your free will," she explains. Shenoy exemplified with her own experience and said, "My second book was rejected multiple times and it was my will to keep going that has brought me to where I am right now." She said it is our past experiences as well our choices that shapes our personality. Shenoy pointed out a line on the back cover of her book which read, "One man, two women and a trap called destiny". This, she said, sums up the entire book.
- India vs England: Jennings, Dawson added to England squad
Durham opener Keaton Jennings and Hampshire spinner Liam Dawson had been added to the England squad for the remainder of the Test series against India. The pair will replace 19-year-old Haseeb Hameed, who has been ruled out of the series owing to a fractured finger that needs surgery, and Zafar Ansari, who has been sidelined with a back injury.
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Indian captain Virat Kohli and England's premier all-rounder Ben Stokes are having a go at each other for the past three days -- at times openly like on the first day and at times subtly like it has happened in the next two days.


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STORY BY Neil Melancon
The Sixth Circuit Federal Court put a temporary halt on implementation of the controversial Waters of the United States (WOTUS) rule, a rule that allowed wide-sweeping regulation of bodies of water of any size including runoff from home lawns and farm fields.
Many farmers and farm organizations have staunchly opposed the rule as it allowed regulators unprecedented authority to control water and land usage. The new rule eliminates the word "navigable" from its previous outline on how federal authorities, including the Environmental Protection Agency, can regulate waters in the U.S.
Ronnie Anderson, president of the Louisiana Farm Bureau, said that means any home that has water coming off the property line can subject to enforcement action.
"It would affect everybody with any kind of ditch or drainage, runoff from your yard, your farm, fields, wherever," Anderson said. "It's an over-the-top encroachment by the EPA and one of the most invasive regulations the EPA has ever moved forward."
Bob Stallman, president of the American Farm Bureau agreed and said he was relieved the court recognized the overreach, calling the rule 'seriously flawed.'
"The judges expressed deep concerns over the basic legality of this rule," Stallman said. "We're not in the least surprised. This is the worst EPA order we have seen since the agency was established more than 40 years ago. The court clearly understood our arguments."
Stallman recognized the stay was a temporary halt at best, but was confident upon further judicial review that the rule would be eliminated entirely.
"Unfortunately, we also know stays don't last forever, and cases like this almost always take years to win," he said. "We are confident that the courts will strike down this rule. The American Farm Bureau Federation is pleased the Sixth Circuit recognizes that this rule has serious flaws and cannot go forward until the courts have had an opportunity to understand its effect on farmers, ranchers and landowners of all kinds. We again ask the Senate to pass legislation to nullify this rule just as the House has already done."
Anderson said it was not only a huge relief for his organization and the farmers they represent, but also personally gratifying as the rule would have affected his own cattle operation.
"I hope they stay holds and the EPA will probably appeal," Anderson said. "It would affect me in my cow-calf operations and pasture land like I have where I feed hay in concentrated areas, with any kind of runoff from those fields. The way the concentrated animal industry is, whether you're dealing with poultry, hogs or cattle, it becomes progressively more invasive with what you can do and how you can handle land usage. This ruling is just a good thing."

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Putnam Street homes without water overnight
MONTPELIER Several multifamily residences on Putnam Street, off Barre Street, were without water Friday after a water line broke Thursday evening, a city official said.
Assistant Public Works Director Tom McArdle said bolts had rotted away, allowing the break to occur at the connection at one end of the line.
He said it was unclear whether construction work that has started on the street in preparation for paving contributed to the problem, but that the rotted bolts needed replacing anyway. Better it happened now than after the paving project, he said.
The homes on the dead-end street lost their water service when the line broke between 7 and 7:30 p.m. The line was expected to be repaired and water restored late Friday afternoon, McArdle said.
The water line on that street is also a dead end, he said, ending at a fire hydrant.
They had a little difficulty shutting it down, said McArdle, adding that repair work started first thing Friday morning.MORE IN This Just InWASHINGTON The House on Thursday cleared bills to keep the government running through April and... Full StorySALISBURY, N.C. Full StoryMEUREUDU, Indonesia Humanitarian organizations descended on Indonesias Aceh province Thursday ... Full Story
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GEISMAR, GERMANY (Nov. 30, 1:35 p.m. ET) – A U.S. investment firm has purchased a stake in a German company that makes board, sheet and textiles out of recycled plastics. The company says it will use the funding to open a factory in South Carolina.
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decided: February 27, 1981.
DARREL C. NOTTELSON, PLAINTIFF-APPELLEE, AND EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, INTERVENOR-APPELLEE,v.SMITH STEEL WORKERS D.A.L.U. 19806, AFL-CIO, AND A. O. SMITH CORPORATION, DEFENDANTS-APPELLANTS.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 75-C-220 -- Robert W. Warren, Judge.
Before Swygert, Cummings and Pell, Circuit Judges.
Plaintiff Darrel C. Nottelson brought this action against his employer, defendant A. O. Smith Corporation (Smith), and his union, defendant Smith Steel Workers D.A.L.U.*fn1 19806, AFL-CIO (Union), under 42 U.S.C. § 2000e-5(f)(1) and (3), alleging inter alia that defendants had discriminated against plaintiff because of his religion in violation of Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e et seq.), in that they failed "reasonably to accommodate" within the meaning of Section 701(j) of that Act (42 U.S.C. § 2000e(j), note 4 infra) to plaintiff's religious objection to the payment of union dues. The district court ruled in favor of plaintiff on this claim with respect to both defendants and they have appealed. We affirm with one slight modification of the computation of damages.
I. Introduction
Plaintiff, a resident of Menominee Falls, Wisconsin, was a production worker at Smith from October 30, 1947, to July 11, 1975, and a member of the Union from October 30, 1947, to April 15, 1975. The Union is the exclusive bargaining agent for the collective bargaining unit in which plaintiff was employed, and the collective bargaining agreement between Smith and the Union contains a union security clause requiring membership in the Union as a condition of continued employment with Smith.
In May 1966, plaintiff joined the Seventh-day Adventist Church, which teaches that it is morally wrong to be a member of or pay dues to a labor organization. In December 1974, plaintiff informed the Union that he could no longer in good conscience support it financially because of his religious convictions and requested the Union to accommodate his religious objection to the payment of union dues by permitting him to pay an equivalent sum to a non-religious, non-union charity. He ceased paying his dues on January 1, 1975, and to show his good faith began making contributions to the American Cancer Society. The Union refused the requested accommodation and in March 1975 notified plaintiff that he would have to pay his delinquent dues or be discharged from Smith pursuant to the union security clause in the collective bargaining agreement. Smith indicated that it was willing to make an accommodation but not without the Union's approval. Plaintiff thereupon filed a charge of unlawful employment practices with the Equal Employment Opportunity Commission (EEOC) office in Milwaukee, Wisconsin, and the EEOC referred the matter to the appropriate Wisconsin agency on April 2.
On April 15, the Union expelled plaintiff from its membership for failure to pay dues, and on April 17 informed him that he would be discharged. On April 23, plaintiff initiated the present litigation, seeking temporary and preliminary injunctive relief pending final disposition of the charges filed with the EEOC. Smith discharged plaintiff on April 24. On April 30, Judge Warren issued a temporary restraining order which, with extensions, restored plaintiff to his job until July 10. On that date, Judge Warren dismissed the action for want of a present EEOC right-to-sue letter to plaintiff, without prejudice to reinstatement upon receipt of such a letter. 397 F. Supp. 928.
The Union again insisted on plaintiff's discharge and Smith complied, informing plaintiff not to come to work on July 11. He has not returned to employment at Smith since that date. Smith also refused, because of the Union's contractual objection, to defer plaintiff's termination until his six weeks' vacation time was used but did pay him for that period. The EEOC issued plaintiff a right-to-sue letter on July 21, and on October 29, plaintiff filed his second amended and supplemental complaint against defendants pursuant to an October 22 order granting his July 22 motion for leave to do so.
In Count I Smith and the Union were alleged to have discriminated against plaintiff because of his religion in violation of Sections 703(a)(1)*fn2 and 703(c)(1)*fn3 of the Civil Rights Act of 1964 respectively in that they had failed to show that they could not reasonably accommodate plaintiff's religious observance "without undue hardship" as required by Section 701(j)*fn4 of the Act. The Union was also alleged to have violated 703(c)(3)*fn5 of the Act by enforcing the union security provision of the collective bargaining agreement so as to cause Smith to discriminate against plaintiff on the basis of religion. Plaintiff therefore sought reinstatement, actual damages of $50,000, exemplary damages of $100,000 and reasonable attorney's fees (then supposedly amounting to $10,000).
In Count II, plaintiff sought identical relief, alleging that the union security clause of the collective bargaining agreement had been enforced under the sanction of the National Labor Relations Act (NLRA) in contravention of the First, Fourth, Ninth, and Fourteenth Amendments.*fn6 Sections 8(a)(3) and 8(b)(2) of the NLRA (29 U.S.C. §§ 158(a)(3) and 158(b)(2)) recognize the validity of union security clauses and the concomitant right of a union to demand discharge of an employee for failure to pay dues.
The Union in its responsive pleadings and at trial took the position that enforcement of the union security clause against plaintiff was protected under the NLRA and therefore did not violate Title VII and that Title VII's Section 701(j), as sought to be applied, violated the Establishment Clause of the First Amendment. Smith asserted the affirmative defense of undue hardship, claiming that it had done all it could to accommodate plaintiff without causing the Union to initiate arbitration proceedings to enforce the union security clause and to file an unfair labor practice charge to the same effect under the NLRA.
The district court's findings of fact and conclusions of law are contained in three memorandum opinions reported at 423 F. Supp. 1345, 481 F. Supp. 756, and 489 F. Supp. 94. Judge Warren held first, in denying the Union's motion to dismiss Counts I and II, that the union security provision was not a defense to the Title VII claim. 423 F. Supp. at 1347-1348. Subsequently, he reaffirmed and clarified this ruling in response to defendants' post-trial motion for reconsideration, holding that the anti-discrimination provisions of Title VII take priority over the pro-union security clause provisions of the NLRA. 489 F. Supp. at 96-97. Following the trial, Judge Warren entered his findings that defendants could have accommodated plaintiff's charity-substitute proposal without undue hardship and that they had therefore violated Title VII by failing to do so. 481 F. Supp. at 759-760. He also held, in denying defendants' motion to reconsider, that Section 701(j) does not violate the Establishment Clause. 489 F. Supp. at 97-98. He declined to decide the constitutional questions raised by plaintiff in Count II of the amended and supplemental complaint because plaintiff had been afforded complete relief on the statutory claim set forth in Count I. 489 F. Supp. at 97.*fn7
The final judgment, entered on April 18, 1980, awarded plaintiff back pay, attorney's fees and costs, to be borne equally by Smith and the Union. Smith was ordered to reinstate plaintiff no later than April 28, 1980; plaintiff was ordered to contribute to a non-religious charity to be agreed upon by plaintiff and the Union "an amount equal to the union dues he would have owed had he continued to work at Smith during the relevant period;" and the Union was enjoined from interfering with the judgment by filing a grievance with the National Labor Relations Board. 489 F. Supp. at 98-99.
The Union and Smith filed notices of appeal on May 9 and 15 respectively, and the cases, docketed here as Nos. 80-1678 and 80-1705 respectively, were consolidated by this Court pursuant to motions by the parties. On June 19, we granted leave to the EEOC to intervene on plaintiff's behalf.
II. The Duty to Accommodate
It is undisputed that Title VII requires unions and employers to make a reasonable accommodation of an employee's religiously motivated conduct or to show that to do so would work an undue hardship. Smith concedes that it was so required in this case. The Union, however, has adamantly maintained from the outset of the events leading to this litigation that Title VII is preempted here by the NLRA. As noted, Sections 8(a)(3) and 8(b)(2) of the NLRA permit an employee in a union shop to be discharged for failure to pay union dues. The thrust of the Union's position is that these provisions represent a Congressional determination of the balance to be struck between the national policy of promoting labor peace and the national policy protecting the religious needs of individual employees and therefore constitute an exemption from duty to accommodate otherwise imposed by Title VII.
The district court rejected this argument and held that to the contrary Title VII creates an exception to the NLRA's sanction of union security clauses. 489 F. Supp. at 96-97. We agree. As the Sixth Circuit concluded after extensive discussion of this issue, "(t)here is no indication in the text or legislative history of (the NLRA) that Congress intended either subsection 8(a)(3) or 8(b) (2) to strike a balance between the religious needs of individual employees and the security requirements of unions." McDaniel v. Essex International, 571 F.2d 338, 342 (6th Cir. 1978). The compromise intended was "between the abuses of compulsory unionism and the problem of "free-riders'." Id.; see also National Labor Relations Board v. General Motors Corp., 373 U.S. 734, 740, 83 S. Ct. 1453, 1458, 10 L. Ed. 2d 670. To that end, "(t)he closed shop was outlawed; the union shop was permitted, with the limitation that a union could require an employer to discharge an employee only for failure to pay dues." McDaniel, supra, at 342. The question of religious accommodation simply was not addressed when Congress was considering the enactment of Sections 8(a)(3) and 8(b)(2). McDaniel, supra at 343.
In addition, the Union's claim that the NLRA established an overriding policy favoring union security provisions is belied by the fact that such provisions are unenforceable in states where state law is to the contrary. 29 U.S.C. § 164(b); Retail Clerks v. Schermerhorn, 373 U.S. 746, 83 S. Ct. 1461, 10 L. Ed. 2d 678. Indeed, they have recently been held subordinate to state statutes requiring a charity-substitute accommodation like the one in issue here for religious objectors. Lumber Workers Local 2362 v. Wondzell, 601 P.2d 584 (Alaska Sup.Ct. 1979), appeal dismissed for want of a substantial federal question, 444 U.S. 1040, 100 S. Ct. 724, 62 L. Ed. 2d 726. Moreover, there is "no national (labor) policy of higher priority than the elimination of discrimination in employment practices." McDaniel, supra at 343; see Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S. Ct. 1011, 1019, 39 L. Ed. 2d 147.
Title VII does not itself provide an exemption for unintentional discrimination resulting from the enforcement of union security clauses as it does, for example, for unintentional discrimination resulting from the implementation of a bona fide seniority or merit system. See 29 U.S.C. § 2000e-2(h); Trans World Airlines v. Hardison, 432 U.S. 63, 81-82, 97 S. Ct. 2264, 2275, 53 L. Ed. 2d 113. Given the absence of such an express exemption and the complete lack of evidence that Congress intended the courts to imply such an exemption from the NLRA, we join with the Fifth, Sixth and Ninth Circuits in holding that the union security provisions of the NLRA "do not relieve an employer or a union of the duty of attempting to make reasonable accommodation to the individual religious needs of employees." McDaniel, supra at 343. Accord, Yott v. North American Rockwell Corp., 602 F.2d 904 (9th Cir. 1979); Burns v. Southern Pacific Transportation Co., 589 F.2d 403 (9th Cir. 1978), certiorari denied, 439 U.S. 1072, 99 S. Ct. 843, 59 L. Ed. 2d 38; Anderson v. General Dynamics, 589 F.2d 397 (9th Cir. 1978), certiorari denied sub nom. International Association of Machinists and Aerospace Workers of America v. Anderson, 442 U.S. 921, 99 S. Ct. 2848, 61 L. Ed. 2d 290; Cooper v. General Dynamics, Convair Aerospace Div., 533 F.2d 163 (5th Cir. 1976), certiorari denied sub nom. International Association of Machinists and Aerospace Workers v. Hopkins, 433 U.S. 908, 97 S. Ct. 2972, 53 L. Ed. 2d 1091.
III. Undue Hardship
A. The Union
The Union argues alternatively that the district court erred in finding that it could have accommodated plaintiff's charity-substitute proposal without undue hardship. At the outset, we reject the Union's claim that the district court applied the wrong legal standard. "Undue hardship" has been determined by the Supreme Court to exist only where the cost imposed is more than "de minimis." Trans World Airlines v. Hardison, 432 U.S. 63, 84, 97 S. Ct. 2264, 2276, 53 L. Ed. 2d 113. The rationale underlying this determination is that anything more than a de minimis cost would result in discrimination against other employees, a result the Court concluded Congress did not intend. The district court plainly applied the Hardison standard, finding that the charity-substitute accommodation would impose "only a de minimis cost" on the Union (481 F. Supp. at 759) and "would not increase the amount or severity of duties required of (plaintiff's) co-workers" (481 F. Supp. at 760).
We also reject the Union's contention that the district court's findings were erroneous because the failure of any individual to pay union dues in a union shop is as a matter of law "always above de minimis" in that other workers must pay more than their fair share of the costs of union representation. Because a religious objector under a charity-substitute accommodation bears the same financial burden as his co-workers, he is not, as the Union suggests, a "free rider" seeking something for nothing, and the diversion of his contribution to a charity rather than the Union does not of itself make the accommodation unfair or unreasonable as a matter of law. See McDaniel, supra, 571 F.2d at 343; Burns v. Southern Pacific Transportation, supra, 589 F.2d at 406-407; Anderson v. General Dynamics, supra, 589 F.2d at 401-402.
As this Court has already made clear, the determination of whether an accommodation can be made without undue hardship is an issue of fact and will not be set aside unless clearly erroneous. Redmond v. GAF Corp., 574 F.2d 897, 902-903 (7th Cir. 1978). Here the district court's findings are amply supported by the record.
The Secretary-Treasurer of the Union testified that the Union would not be financially injured by the loss of plaintiff's dues, which represented only .02% of the Union's annual budget. The Union presented no evidence that the loss of receipts from plaintiff would necessitate an increase in the dues of his co-workers, and even if such an increase were necessary it would amount only to 2.4 cents per year per employee. In Burns v. Southern Pacific Transportation Co., supra, the Ninth Circuit in a case virtually identical to this one held that an increase of 24 cents per year was de minimis. 589 F.2d at 407.
There was also no evidence presented that other workers would seek similar accommodations or that the accommodation would lead to labor strife. The Union President admitted that his fear of a "steamroller effect" was purely conjectural and that no other employee had sought such an accommodation. He also admitted that he knew of no harm suffered by a union that had permitted such accommodations, that he had made no effort to contact the officials of any union that had permitted such an accommodation, and that he was aware that the charity-substitute has been officially adopted by the Executive Council of the AFL-CIO (see Joint App. at 430) as an appropriate accommodation of individual religious needs.
The burden of making a reasonable accommodation or proving undue hardship was on the Union. Anderson v. General Dynamics, supra, 589 F.2d at 401. The record shows that the Union in fact flatly refused to make any accommodation*fn8 and at trial failed to present any evidence of undue hardship. The district court's finding that the Union had violated Title VII by causing Smith to discharge plaintiff because of his religious objection to the payment of dues was therefore not erroneous.
B. Smith
We also conclude that the district court did not err in finding that Smith had violated Title VII. Smith has never disputed the reasonableness of the charity-substitute accommodation itself; its claim is that it could not unilaterally accept this accommodation in disregard of the union security clause in its collective bargaining agreement with the Union. It is well settled, however, that Title VII rights cannot be bargained away and that a collective bargaining agreement therefore does not of itself provide a defense for Title VII violations. See Robinson v. Lorillard, 444 F.2d 791, 799 (5th Cir. 1971); cf. Alexander v. Gardner-Denver Co., 415 U.S. 36, 51, 94 S. Ct. 1011, 1021, 39 L. Ed. 2d 147.
Trans World Airlines v. Hardison, supra, on which Smith relies, is not to the contrary. TWA was found not to have violated Title VII in that case because accommodation of the plaintiff's religious objection to working on Saturdays would have required abrogation of the rights of other employees under a bona fide seniority system protected not only under the collective bargaining agreement but under Title VII itself. The Court held only that Congress did not intend such an accommodation, not that compliance with a collective bargaining agreement was a defense to an allegation of employer discrimination. Indeed, the Court expressly stated that "neither a collective bargaining agreement nor a seniority system may be employed to violate Title VII." 432 U.S. at 79, 97 S. Ct. at 2274.
In addition, Smith's position is foreclosed by the statute itself. Section 703(c)(3) makes it unlawful for a union "to cause an employer to discriminate against an individual in violation of this section," thus plainly contemplating that both employer and union would be culpable where the employer accedes to a union's unlawful demand for discriminatory action.
It is true, of course, that Smith was caught between a rock and a hard place. The choice was not, however, as Smith would have it, between a no-cost compliance with the Union's demands and the cost of defending itself against the Union in grievance proceedings. The choice was between the cost of grievance proceedings and the cost of defending against and satisfying plaintiff's Title VII claim. The district court recognized that "undergoing grievance proceedings may have cost Smith something," but concluded that Smith "could have lessened its exposure" and protected plaintiff in compliance with Title VII by not acceding to the Union's demand (489 F. Supp. at 98). Smith does not claim otherwise, but relies on the argument that Congress did not intend an employer to accommodate religion in disregard of collective bargaining agreements. For the reasons discussed above, we cannot accept that defense in this case and therefore affirm the district court's finding that Smith violated Title VII.*fn9
IV. The Constitutionality of Section 701(j)
Smith and the Union claim that Section 701(j) violates the First Amendment's command that "Congress shall make no law respecting an establishment of religion * * *." We are inclined to agree with the EEOC that we are bound on this issue by the holding in Rankins v. Commission on Professional Competence, 24 Cal.3d 167, 154 Cal.Rptr. 907, 593 P.2d 852 (1979). In that case, the California Supreme Court adopted the language of Section 701(j) to interpret a state constitutional provision outlawing employment discrimination as forbidding "disqualification of employees for religious practices unless reasonable accommodation by the employer is impossible without undue hardship," 24 Cal.3d at 167, 154 Cal.Rptr. 907, 593 P.2d 852, and then held that the provision, so interpreted, did not violate the Establishment Clause. The Supreme Court dismissed the appeal, taken under 28 U.S.C. § 1257(2), for want of a substantial federal question. 444 U.S. 986, 100 S. Ct. 515, 62 L. Ed. 2d 416. This, of course, is a decision on the merits. Hicks v. Miranda, 422 U.S. 332, 343-344, 95 S. Ct. 2281, 2288, 45 L. Ed. 2d 223.
The Union attempts to distinguish Rankins on the ground that it involved a religious objection to working on certain holy days whereas this case involves a religious objection to union dues. We think this is a distinction without substance. The question in both cases is whether a legislative mandate requiring reasonable accommodation of religious conduct (short of undue hardship) offends the First Amendment. Once it has been determined as a factual matter that an accommodation is reasonable, the nature of the underlying religious objection becomes irrelevant.
Assuming, however, that we are not bound by Rankins, we reach the same conclusion under the three-part test enunciated by the Supreme Court for determining whether a statute is permissible under the Establishment Clause. That test provides:
"First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion * * *; finally, the statute must not foster "an excessive government entanglement with religion' " (quoting Walz v. Tax Commission, 397 U.S. 664, 674, 90 S. Ct. 1409, 1414, 25 L. Ed. 2d 697). Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S. Ct. 2105, 2111, 29 L. Ed. 2d 745 (citations omitted).*fn10
The purpose of Title VII's anti-discrimination provisions is "to achieve equality of employment opportunities." Griggs v. Duke Power Co., 401 U.S. 424, 429, 91 S. Ct. 849, 852, 28 L. Ed. 2d 158; see also Trans World Airlines v. Hardison, supra, 432 U.S. at 85, 97 S. Ct. at 2277. Section 701(j), by prohibiting unreasonable refusal to accommodate religiously motivated conduct and practices as well as beliefs, is plainly intended to protect the employment opportunities not only of the victims of overt discrimination but also of individuals who are unintentionally discriminated against because their religious convictions are not reflected in facially neutral majoritarian rules. Cf. Griggs, supra, 401 U.S. at 431, 91 S. Ct. at 853. This is a secular purpose. Section 701(j) is also plainly intended to relieve individuals of the burden of choosing between their jobs and their religious convictions where such relief will not unduly burden others. This is also a secular purpose, part of "our happy tradition" of "avoiding unnecessary clashes with the dictates of conscience." United States v. Macintosh, 283 U.S. 605, 634, 51 S. Ct. 570, 578, 75 L. Ed. 1302 (Hughes, C. J., dissenting ); see Abington School District v. Schempp, 374 U.S. 203, 294-299, 83 S. Ct. 1560, 1609-1612, 10 L. Ed. 2d 844 (Brennan, J., concurring ).*fn11
Application of Section 701(j) does not, as defendants contend, have a primary effect of advancing the interests of religionists over non-religionists or the beliefs of one sect over those of another. Like the statutory exemption to military service for conscientious objectors, it requires no particular sectarian affiliation or theological position and promotes only "the principle of supremacy of conscience." Gillette v. United States, 401 U.S. 437, 453, 91 S. Ct. 828, 838, 28 L. Ed. 2d 168.*fn12 It does not confer a benefit on those accommodated, but rather relieves those individuals of a special burden that others do not suffer by permitting them to fulfill their societal obligations in a different manner, as in this case by substituting a charitable contribution for union dues. Such accommodations have generally been held compatible with the Establishment Clause. See, e. g., Wisconsin v. Yoder, 406 U.S. 205, 234-236, 92 S. Ct. 1526, 32 L. Ed. 2d 1543; Zorach v. Clauson, 343 U.S. 306, 314, 72 S. Ct. 679, 684, 96 L. Ed. 954; Sherbert v. Verner, 374 U.S. 398, 409, 83 S. Ct. 1790, 1796, 10 L. Ed. 2d 965. The fact that some religions may have more or different kinds of religiously dictated observances than other religions does not invalidate a law that applies to all faiths equally.
Nor does Section 701(j) foster "an excessive government entanglement with religion" under the third branch of the Lemon test, supra. The government is required only to determine whether a belief is "religious" within the meaning of the statute (see note 12 supra ) and whether it is sincerely held, a question of credibility. This is essentially the same determination required in implementing the conscientious objector exemption under the selective service statutes and does not render Section 701(j) invalid.
Finally, we note that when an individual is exempted from military service as a conscientious objector, another individual must go in his place. The cost to the second individual might very well include injury or death and is in any event clearly greater than the de minimis cost imposed on others by Section 701(j). Inasmuch as the selective service exemption does not offend the Establishment Clause, see Gillette, supra, 401 U.S. at 448-460, 91 S. Ct. at 835-841, it follows necessarily that Section 701(j) on its face and as here applied does not either. See also Cummins v. Parker Seal Company, 516 F.2d 544, 551-554 (6th Cir. 1975), affirmed by an equally divided court, 429 U.S. 65, 97 S. Ct. 342, 50 L. Ed. 2d 223, vacated and remanded on another ground, 433 U.S. 903.*fn13 Accordingly, the district court correctly adopted the holding in Tooley v. Martin-Marietta Corp., 476 F. Supp. 1027, 1030 (D.Ore.1979), that Section 701(j) "promotes the free exercise of religion without violating the Establishment Clause."
V. Attorney's Fees and Unemployment Compensation Benefits
The district court held that plaintiff as the prevailing party was entitled to reasonable attorney's fees, to be paid equally by Smith and the Union, pursuant to Section 706(k) of the Civil Rights Act (42 U.S.C. § 2000e-5(k)). 489 F. Supp. at 99. Subsequently the fees award was set at $12,478 (Supplement to Union's Appendix).*fn14 Smith and the Union argue that plaintiff is not entitled to attorney's fees because they would be paid over to the Seventh-day Adventist Church, which is said to have used this litigation to advance the tenets of its faith. Requiring defendants to pay fees in this situation, they argue, would violate the Establishment Clause.
At the oral argument in this Court, plaintiff's counsel stated that contrary to defendants' assertion he intended to charge plaintiff for his services. Plaintiff's position is that the district court correctly held that he is a prevailing party entitled to reasonable attorney's fees under Section 706(k) and that whatever he elects to do with the funds subsequently is his own business and cannot violate the First Amendment. We agree, and therefore affirm the district court on this issue as well. See Anderson v. General Dynamics, supra, 589 F.2d at 402; Tooley v. Martin-Marietta Corp., supra, 476 F. Supp. at 1031.
One final point. In holding defendants jointly liable, Judge Warren reduced the total back pay due plaintiff from defendants by the amount of employment benefits paid him. 489 F. Supp. at 98; J.App. 65. However, the amount of those benefits paid and to be paid should be credited only to Smith, the party who financed them under Wis.Stats. 108.16 and 108.18. Since the Union did not contribute to plaintiff's unemployment compensation account, it should not receive credit for payments to him from that account. Otherwise the judgment below remains unchanged.
Judgment affirmed as modified; costs to plaintiff.*fn15
PELL, Circuit Judge, dissenting.
The First Amendment of our Constitution treats religion in two respects: Congress shall make no law respecting an establishment of religion but, on the other hand, Congress shall make no law prohibiting the free exercise of religion. Each of these prohibitions is a fundamental part of the heritage of this nation. Many of the early settlers came to the colonies for the purpose of engaging in a free exercise of their religious beliefs, but the need for this freedom of exercise often arose because of the repressive alliance between church and state which tolerated no exercise of other or non-approved religious beliefs. Because it appears to me that the majority opinion crosses the boundary of freedom of exercise into an excessive governmental entanglement with religion, I respectfully dissent.
In reaching the conclusion I have, I have essentially agreed with, and would adopt, the reasoning and analysis of Judge Schwartz in Anderson v. General Dynamics Convair Aerospace Division, 489 F. Supp. 782 (S.D.Cal.1980), appeal docketed, No. 80-5373 (9th Cir. May 14, 1980).*fn1 I am not unmindful that that decision has been appealed to the Ninth Circuit and that oral argument was heard in that court on January 15, 1981. Because of my firm conviction that the correct result was reached by the district court in Anderson, I will adhere to that position irrespective of the result that may be reached by the Ninth Circuit in reviewing that case. I also see no reason for adding to the analysis of Judge Schwartz. I will therefore confine myself to a few observations directed to the majority opinion in the present case.
That opinion upholds a charity-substitute accommodation as making the religious objector not a "free rider" seeking something for nothing, and opines that the diversion of his contribution to a charity rather than the Union does not make the accommodation unfair or unreasonable. The Union, however, by law is the legal representative of all employees in the Smith unit and it is required to represent all of such employees without discrimination. Further, by a legally valid contract, the Union is entitled to have all employees in the unit contribute their proportionate share of the cost of that representation. The fact should not be significant that by paying over to a charity an amount equivalent to dues Nottelson expends the same amount of money as does another employee who may not be in favor of the Union representing him but who cannot fall back upon a claimed religious tenet. The merchant who sells merchandise, or the lawyer who sells service, would scarcely regard that he was receiving a quid pro quo to which he was entitled if the price or the fee was instead paid over to a charity no matter how worthwhile or deserving that other recipient might be. No more, it seems to me, should Nottelson be entitled to the services without paying for them in the same manner as his fellow employees. In sum, he is a "free rider," plain and simple.
Referring to the substitution of a charitable contribution for the payment of union dues, where the payment is required for the retention of employment status, as fulfilling "societal obligations" strikes me as indulging in noetic perjinkities divorced from realism. Nor do I think that we can adopt the pragmatic analysis that the loss of a particular payment of dues involves only a very small amount of money. While undoubtedly the Seventh-Day Adventist Church is not the largest denomination in this country, it equally undoubtedly includes a substantial number of people among its adherents. Assuming that Nottelson is relying on a basic tenet of his religion, the result in this test case, litigated by his Church, cannot but have a substantial impact in industrial situations similar to that here involved. We cannot philodoxically avoid the fact of entanglement by simplistically ordaining that Section 701(j) does not have a primary effect of advancing the beliefs of one sect over those of another.
I am not unmindful, as the majority opinion points out, that the Executive Council of the AFL-CIO has adopted the charity-substitute as an appropriate accommodation of individual religious needs. I do not regard this as persuasive on the validity of Section 701(j). No one in this day and age wants lightly to chance the charge of being considered as being guilty of any form of discrimination. When this moral pressure, given teeth by the specific legislative requirement of reasonable accommodation, is considered in the context of making the religious objector be out of pocket at least the same amount of money by payment to a worthwhile charitable organization, it is not surprising that the Executive Council would make the best of a situation even though it is contrary to an objective for which Unions generally have long fought.
The majority opinion, in addressing the constitutionality issue, relies heavily on Rankins v. Commission on Professional Competence, 24 Cal.3d 167, 154 Cal.Rptr. 907, 593 P.2d 852 (1979), appeal dismissed, 444 U.S. 986, 100 S. Ct. 515, 62 L. Ed. 2d 416, which, it is asserted, is binding on this court. That opinion of the California Supreme Court, a four-to-three decision, was indeed the subject of a dismissal on appeal as not involving a substantial federal question although three of the Justices "would note probable jurisdiction and set case for oral argument." 444 U.S. 986, 100 S. Ct. 515, 62 L. Ed. 2d 416. Nevertheless, this dismissal under Hicks v. Miranda, 422 U.S. 332, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975), as the majority opinion points out, is a decision on the merits. Rankins, however, represents no more than an application of Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963) which has never been expressly overruled, irrespective of what impact upon its viability may have resulted from Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S. Ct. 2264, 53 L. Ed. 2d 113 (1977).
The dismissal in view of Sherbert is not surprising when the facts of Rankins are considered. The plaintiff there simply sought to take off on his holy days and without pay. The California Supreme Court enjoined the dismissal of the plaintiff taking note: "There was no shortage of fully qualified substitute teachers who could be and were called in to replace him at no additional cost to the district." 593 P.2d at 857. Also the California Supreme Court noted that permitting the absence of the plaintiff on his holy days did not constitute a "preference of one religion over another." 593 P.2d at 859. On the contrary, the regular school calendar provided holidays on the principal Christian holy days, so that the effect of permitting absences without pay to plaintiff on his holy days "is simply to lessen the discrepancy between the conditions imposed on (the plaintiff's) religious observances and those enjoyed ... by adherents of majority religions," id.
As the company points out in its brief here, in this case, by contrast, the dues exemption creates a religious preference; it does not "lessen" one. In any event, the striking difference in the situations involved in Rankins and in the case at bar do not, in my opinion, make the dismissal of the Rankins appeal binding on this court. Those striking differences cannot be lightly brushed aside, as the majority would do, by being referred to as a distinction without a difference.
Having stated my opinion that Section 701(j) is unconstitutional, at least as applied in the present situation, I recognize the possibility of a reservation implicit in my discussion of the lack of reasonableness of the accommodation approved by the majority opinion. That reservation is brought to my mind by Catholic Bishop of Chicago v. NLRB, 559 F.2d 1112 (7th Cir. 1977), in which this court held that the Board unconstitutionally exercised jurisdiction over lay teachers in parochial schools. The Supreme Court affirmed the result, NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S. Ct. 1313, 59 L. Ed. 2d 533 (1979), but, in accordance with long established principles of reaching a decision if possible on grounds other than constitutional, held that the Board was exercising jurisdiction beyond the power given it by Congress. The Court recognized that the exercise of jurisdiction "would implicate the guarantees of the Religion Clauses," but declined "to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses." Id. at 507, 99 S. Ct. at 1322.*fn2 Here, while I recognize the possibility that the case could be disposed of similarly, it does appear to me that in imposing upon employers, and sometimes on unions, the necessity of reasonably accommodating the diverse practices of the many different religions extant in this country, entanglement cannot be avoided and the challenged section should be struck down.
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May 6, 2013
BELINDA K. AND J.H., HER MINOR SON,PETITIONERS,v.YOLANDA BALDOVINOS, ET AL.,RESPONDENTS.
On February 8, 2013, the Court received two CDs filed by Belinda K., entitled "Calico Interview: 12-20-2006" and "Belinda K. Appeals." This Court no longer has jurisdiction over this 20 case, as it is currently pending on appeal. As such, the Court will not review these submissions. 21 Because the Calico Interview is an interview with a minor about confidential allegations, the Court 22 will keep these submissions under seal.
In an Administrative Motion filed on February 26, 2013, ECF No. 280, Respondents County of Alameda and Yolanda Baldovinos requested copies of endorsed-filed, unredacted 25 versions of several documents that the parties had filed with the District Court. 26
With the exception of the Notice of Appeal, the requested documents were filed under seal.
In preparing for the appeal filed by Petitioner/Appellant Belinda K. (Ninth Circuit Appellate #12-28 15372), Respondents have discovered that they do not have endorsed-filed, unredacted copies of 2 the above documents, which they intend to submit to the Ninth Circuit as Excerpts of Record per 3
Ninth Circuit Rule 30-1. See ECF No. 280. Respondents' counsel submits that these documents 4 are necessary to the above-referenced appeal. 5
6 filed on ECF: the Notice of Appeal (Docket #250), and the Summary Judgment Order (Docket 7 #233). *fn1 The Clerk's office shall provide Respondents with copies of these documents. 8
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Jeri Issacson; Declaration of Linda Fuchs; and Declaration of Marry Ellyn Gormley. Because 12 copies of the remaining documents are currently unavailable, the Court DENIES Respondents' 13 motion with respect to these documents. 14
The Court hereby GRANTS Respondents' motion as to the requested documents that were The Clerk's office shall also provide Respondents with redacted copies of the Declarations
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June 25, 2012
EMANUEL TUCKER, PETITIONER,v.UNITED STATES OF AMERICA, RESPONDENT.
1. Presently before this Court is the motion of pro se Petitioner Emanuel Tucker. (Docket No. 11). Petitioner originally filed this motion under 28 U.S.C. § 2241 on June 4, 2010, but by order dated August 16, 2010, this Court deemed the motion to be one to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. (Docket No. 12). As noted by Respondent, Petitioner made no objection to this recharacterization.*fn1 At the time he filed the instant motion, Petitioner was incarcerated following a plea agreement wherein he admitted to one of nine charges of violating the conditions of his supervised release. He was released from custody on September 10, 2010 and is again subject to supervised release.
2. Petitioner was initially convicted in 2000 in the Eastern District of Virginia for, inter alia, credit card fraud, and was sentenced to a term of 140 months imprisonment with a five-year term of supervised release. (Docket No. 1 at 14-16). In 2005, while serving his term of supervised release from that conviction, jurisdiction over Petitioner was transferred to this Court. (Id. at 13). Petitioner was subsequently charged with violating the conditions of his supervised release. He entered into a plea agreement on March 16, 2009, wherein he waived his right to appeal any sentence of imprisonment which fell within or was less than the applicable sentencing range of 18 to 24 months. On April 8, 2009, Petitioner was sentenced to 21 months incarceration and a two-year term of supervised release. (Docket No. 10). Because Petitioner did not file an appeal, this judgment became final ten business days later. FED. R. APP. PROC. 4(b)(1)(A)(i) (2009) and 26 (a)(2) (2009); Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005). 3. Section 2255 provides a one-year statute of limitations for filing a motion which runs from the latest of: (1) the date the judgment of conviction becomes final; (2) the date any impediment to filing created by the Government is removed; (3) the date the right asserted in the motion was first recognized by the Supreme Court, or (4) the date on which the facts supporting the claim presented in the motion could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255 (f). As Respondent notes, it is unclear from Petitioner's arguments precisely what his claim is here, although it appears that Petitioner's argument may be that, because of the transfer from the Eastern District of Virginia, this Court lacks jurisdiction to revoke supervised release or impose a sentence for the violation thereof. (Docket No. 11 at 6-8 (basing his claim on the "revocation of a supervised release upon a default judgment which the Court no longer hold[s] title")). Nonetheless, there is nothing alleged in Petitioner's submission that would warrant tolling the limitations period after April 22, 2009, the date Petitioner's judgment of conviction on the violation charge became final. Thus, the instant motion was untimely filed after the expiration of § 2255's one-year statute of limitations. 28 U.S.C. § 2255 (f)(1); Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001). The motion is therefore denied.
IT HEREBY IS ORDERED that Petitioner's Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. (Docket No. 11) is DENIED.
FURTHER, that the Clerk of the Court is directed to close 08-CR-252S and 10-CV-461S.
William M. Skretny
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Homework is a vital part of society, it helps us learn, grow, and most importantly, survive. How? Well, that's quite simple. If you didn't study, if you didn't do math, if you didn't do any of that during the weekends then it would be much harder to learn things and much more strenuous on the teachers. Teachers have a set curriculum that they have to give, it would be much more crammed and more work for everyone if you didn't have homework.
Lets be real, even though none of us want homework on fridays, we need it.
You don't get "breaks" anymore, you're not 6 years old. Sorry to burst your bubble, but nap time and play time is over, time to work and be well educated to get a good job and career.
There is still time to hang out with friends, etc, its all about balancing out school and extra curriculum activities. Plus, all the hard work makes hanging out even more worth it and well deserved.
The people who disagreed only did so based on personal preference (mainly because they cant be bothered), since homework is almost always given out on fridays and theres no serious psychological issue that affects an individuals life with doing homework over the weekend. Realistically, we need the extra work.
And remember, extra homework and studying never killed anyone :)
Yes I think that students should have homework on Fridays too. I think that it should be light review and fun homework. But I still think that the students should have homework on fridays. The teachers have to teach them so much and it is too hard to cram it into the day or even the week.
Yes. i believe students should have homework on Fridays, because it can only help. In a nation with an extremely high drop out rate, we need to take advantage of every opportunity to educate our children. Homework on Fridays would give the child a second look at the material, and maybe the will grasp it better.
Yes, students should have homework on Fridays. While weekends are a time of rest, a bit of material reinforcement is not a bad thing at all. Over the weekend, it is too easy to forget material that was taught during the school week. Weekend homework helps to eliminate this problem.
Yes, students should have homework on Fridays. Homework over the weekend can keep the assignments learned during the week fresh in the student's mind. They are also more inclined to study harder during school days because they know that they will have to execute an assignment at home without the help of the instructor or other students. Furthermore, some countries, such as Korea, conduct school six times a week that includes Saturday.
It takes up vauble time. Adalts and techers say that you should be outside playing. But doing homework keeps you inside and you might be bizy on the weekend with freands or famly that you do not have time to do your homework. Us kids only have 2 days to do what ever we want and on week days we have homework bacly every day
To all hard working adults, how would you like to work 7 days a week. Kids feel the same way getting weekend homework. Homework is important for helping kids remember things but do remember, everybody needs a break. It's like asking the human body to work out for 24 hours without stopping- at all. No drinks, no bathroom breaks, no sleep. Now put the mind in that position. No party, No tv, no computer, no phone, until you get it done. Before Middle School I took advantage of my weekends, it was all the same. Until they gave us more homework on weekdays, a couple years after that it began on Fridays too. Every second of the weekend counts. I think wasting it on homework you DON'T need is useless.
Kids may be young but they still have rights! Homework on Fridays is to much for kids. Homework during the week i say is okay but on the weekend i disagree. People need to realize that a kids brain can only process so much at a time. Kids have rights to!
I am in the musical at Washington High in cherookee Iowa and when I get home with work I dont go to bed until one o clock in the morning. So when I go and do something this week end I am too tired to do anything. So I won't do anything.
NO!! Students should not have homework on Fridays. The weekend should be relaxation and have fun. If students do not have homework on Friday they do not have to worried about it. They can sleep in early. Students are studying Monday to Friday, weekend should not have homework. Take care!!
NO!! Students should not have homework on Fridays. The weekend should be relaxation and have fun. If students do not have homework on Friday they do not have to worried about it. They can sleep in early. Students are studying Monday to Friday, weekend should not have homework. Take care!!
I am saying this because students forget there homework and when homework is on a Friday the students have extra long to try to remember there homework. The human brain takes about 30 seconds to discard information it thinks is useless. Homework is important I know but the students get used to only remembering for a half day so the next day after the time that they usually turn in there homework there brain forgets it and in turn they lose there homework and that then leads to failing grades if that happens again and again and again. That's why I say no to homework on Fridays
I think that kids shouldn't have homework on Fridays. I think that homework is a good idea. I think that kids need homework in order to
learn their coursework and also learn good study habits. But, at the same time, having a healthy
social life is also a life skill that they need to learn.
I think that Friday's should be a day for having fun and relaxation and that students shouldn't have to worry about work over the weekend. The exception could be working on month long projects or something of that nature. Students will probably end up having jobs that require them to take work home on the weekend, so might as well spare them from it while they are young.
NO! The weekend is meant to be used as relaxation and playtime from school. It is completely unnecessary. I go home on a Friday afternoon for what is supposed to be time for playing video games and sleeping in early. But no. I still have to do hours of homework set by teachers who don't even seem to care about us poor kids. Five days of school and two days of rest is definitely unfair. It's obvious isn't it? School just adds insult to injury by giving us a ton load of homework to do on the weekend. Homework makes people feel angry, antisocial, tired and depressed. Imagine staying up on Sunday night to finish the rest of your homework and going to bed at 1 in the morning? It would be a living nightmare.
To conclude, I think students shouldn't have homework on Fridays. They shouldn't even have homework during the weekdays at all!


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July 15, 2014
For the six-month period ended June 30, net income for the Wisconsin-based operation was $13.2 million, or 39 cents per diluted share, compared with $14.9 million, or 45 cents per diluted share, in the 2013 six-month period.
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Superior Court of New Jersey, Appellate Division
July 17, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,v.LATEEF JONES, Defendant-Appellant.
Submitted December 11, 2012
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-11-1353.
Joseph E. Krakora, Public Defender, attorney for appellant (Rasheedah R. Terry, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).
Before Judges Ostrer and Kennedy.
Defendant appeals from the trial court's order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR) from his 2006 convictions by a jury of third-degree aggravated assault (significant bodily injury), N.J.S.A. 2C:12-1b(7); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-2a; third degree aggravated assault, N.J.S.A. 2C:12-1b(2); and second-degree and fourth-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7a and -7b. The certain persons offenses were charged in a separate indictment and tried immediately after the trial of the other charges. After merger, defendant was sentenced to an aggregate seven-year term with a three-year parole disqualifier on the convictions in the first indictment, consecutive to an eight-year term, with a five-year parole disqualifier, on the certain persons indictment. We affirm.
Defendant's convictions arose out of a shooting in Elizabeth. We reviewed the trial evidence in our opinion affirming defendant's convictions and sentence on direct appeal. State v. Jones, No. A-5090-05 (App. Div. Dec. 31, 2007), certif. denied, 194 N.J. 445 (2008).
On April 9, 2004, at around 10:20 p.m., Danielle Albano, was walking to her sister's house near Fifth Avenue and Broadway in Elizabeth. She heard a noise behind her, turned around and saw defendant running towards her with a gun. Albano turned and fled. While running, she heard the screeching sound of a car and five or six shots. Albano did not feel the first two shots. When she realized that she had been shot, she discovered wounds in her hip and both thighs. She also saw Jones enter a green Intrepid which had rounded the corner.
Albano called her brother on her cell phone to inform him that she had been shot. She stumbled to her sister's house and collapsed on the stairs. The police arrived and questioned Albano about the incident. She did not identify defendant as the shooter that evening because she was medicated, in pain and scared.
Albano had seen defendant on numerous occasions in the neighborhood and had three or four verbal encounters with him but knew him only as "Beefy." In March 2004, defendant told Albano that a "girl was looking for [her]" and he inquired about her sexual orientation. A week and half later, defendant stated to Albano, "get out of here before I smack the shit out of you." Defendant made the same comment to Albano a week later. Both incidents occurred when defendant was approximately five feet away from Albano.
A few months after the shooting, Albano informed the police that defendant had shot her. She testified that she was afraid of possible repercussions if she identified defendant as the person who shot her. Before visiting the police station, Albano testified that she learned defendant's real identity as a result of the police report obtained by her mother. After encouragement from her partner, Albano contacted the authorities to identify her assailant. At the police station, Albano gave a statement and identified Jones from an array of six photographs as the person who shot her. At trial, she testified that she saw defendant's face clearly on the night of the shooting and he wore the same clothing as he had on previous occasions.
During her testimony, Albano revealed that on March 28, 2005, she pled guilty to third degree possession with intent to distribute and received a three-year sentence in State prison. She insisted that she did not receive special consideration or leniency in her plea agreement in exchange for her trial testimony.
Rausheta Davis, defendant's girlfriend, testified on his behalf. Davis stated that on the night of the shooting, she, defendant and another woman were watching television and listening to music at home. Davis testified defendant was home all evening. Davis admitted that she failed to provide this information to the authorities when Jones was arrested in 2004, and only provided this information in March 2005 after she was contacted by Jones' defense attorney.
[Id. at 2-4.]
In addition to recognizing defendant from face-to-face verbal encounters, Albano also testified at a preliminary hearing under N.J.R.E. 104 that she had often seen defendant in her neighborhood engaging in drug sales. Albano also testified at the 104 hearing that before the shooting she sold drugs in the same area. However, the court barred the State from eliciting evidence to establish that defendant was motivated to shoot Albano because she was encroaching on his "turf."
On direct appeal, we rejected defendant's challenge to his consecutive sentence. Although the judge and both counsel believed, incorrectly, that a consecutive sentence was required, we found the error harmless as the judge stated he would have imposed a consecutive term independent of any statutory direction. Id. at 7.
We also rejected defendant's argument that the verdict was against the weight of the evidence. Although we noted that we were not required to address the issue, since defense counsel did not file the requisite motion, Rule 2:10-1, we reached the merits and concluded that Albano's identification was substantial evidence in support of the verdict.
Contrary to defendant's contention, substantial evidence in the record supports this verdict. Before the shooting, the victim encountered defendant numerous times in the neighborhood. She testified that on the day of the shooting defendant wore the same clothing as he had worn during her previous encounters with him. Although it was dark, Albano was not more than twenty-feet from Jones and she saw his face before she turned and ran. The victim also expressed a credible reason for declining to identify defendant earlier. Quite simply, she was afraid.
[Id. at 6.]
Defendant filed his pro se PCR petition in August 2009. Appointed counsel primarily argued that trial counsel was ineffective because she failed to move for a judgment notwithstanding the verdict, and did not argue for a concurrent sentence. Judge Joseph P. Perfilio rejected both arguments, reasoning, in part based on our opinion on direct appeal, that defendant suffered no prejudice from counsel's actions. Judge Perfilio also rejected defendant's argument, expressed in his pro se petition, that he was denied effective assistance of counsel because his trial counsel did not move to exclude the victim's in-court identification of defendant.
On appeal, defendant renews his argument regarding trial counsel's failure to file a Wade[1] motion and her failure to seek a concurrent sentence; and he raises a new issue that trial counsel was ineffective by failing to investigate a second alibi witness. He presents the following points for our consideration:
A. Trial And Appellate Counsels' Failure To Challenge Ms. Albano's Out-Of-Court and In-Court Identifications Of Mr. Jones Amounted To Ineffective Assistance Of Counsel.
B. Trial And Appellate Counsels' Failure To Investigate Ms. Burton As An Independent Alibi Witness Amounted To Ineffective Assistance (Not Raise [sic] Below).
C. Sentencing Counsel Rendered Ineffective Assistance Of Counsel When He Failed To Advocate For A Concurrent Sentence For The Second-Degree Certain Persons Not To Have Weapons Charge, N.J.S.A. § 2C:39-7(b) (Count One); Under Indictment Number 04-11-1354-I.
D. The Complained-of Errors, Cumulative Deprived Defendant Of His Right Of Effective Assistance (Not Raise [sic] Below).
THE PCR COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT'S [sic] ESTABLISHED A PRIMA FACIE CASE FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed.2d 898 (2005). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id. at 421.
We apply the well-settled two-prong test for establishing ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984) (stating that a petitioner must establish (1) his or her counsel's performance was deficient and he or she made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) he or she was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). A "reasonable probability" must be "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
A petitioner is obliged to establish the right to relief by a preponderance of the credible evidence. State v. Preciose, 129 N.J. 451, 459 (1992). The court must consider the petitioner's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
However, "a petitioner must do more than make bald assertions that he [or she] was denied the effective assistance of counsel." Ibid.; see also R. 3:22-10(e)(2) (stating court shall not hold evidentiary hearing if "defendant's allegations are too vague, conclusory or speculative"). A hearing should be held if the PCR petition involves material issues of disputed fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J.Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). A court need not hold a hearing if it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed.2d 88 (1997).
Where a defendant asserts his or her attorney was ineffective by failing to file a motion, he or she must establish that the motion would have been successful. "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion[.]" State v. O'Neal, 190 N.J. 601, 619 (2007). For example, where a petitioner complains his or her counsel should have filed a suppression motion, "the defendant not only must satisfy both parts of the Strickland test but also must prove that his [or her] Fourth Amendment claim is meritorious." State v. Fisher, 156 N.J. 494, 501 (1998). The same rule applies to a petition grounded on an alleged failure to file a Wade motion.
We consequently must review the legal principles governing a Wade motion. Although the Supreme Court revised the applicable standard in State v. Henderson, 208 N.J. 208, 288-94, 300-02 (2011), that revision was made prospective. The standard in effect at the time of defendant's trial was restated in State v. Herrera, 187 N.J. 493, 503-04 (2006). To determine whether an identification should be excluded, a court was required "first . . . [to] ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." Ibid. (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977), and State v. Madison, 109 N.J. 223, 233 (1988)). In considering the second step, the court must consider whether the procedure created a "very substantial likelihood of irreparable misidentification." Madison, supra, 109 N.J. at 232.
The test also requires a court to consider the "totality of the circumstances" and to weigh against the suggestive procedure five factors: "'the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" Herrera, supra, 187 N.J. at 506-07 (quoting Manson, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154).
The Manson/Madison test is addressed to impermissibly suggestive police identification procedures. See Perry v. New Hampshire, __U.S. __, 132 S.Ct. 716, 720-21, 181 L.Ed.2d 694, 703 (2012) (noting that pre-trial screening for reliability under United State Supreme Court decisions "turn on the presence of state action" in the form of "improper law enforcement activity"); State v. Chen, 208 N.J. 307, 317-18 (2011) (noting that private activity suggesting an identification does not implicate due process concerns). Our Court, contrary to the United States Supreme Court in Perry, held in Chen that a trial court, in the exercise of its evidentiary gatekeeping function, shall require a preliminary hearing in certain cases involving private conduct affecting an identification. Id. at 327. A defendant must surmount a higher threshold when challenging an identification allegedly tainted by private activity. Ibid. The challenger must present evidence of "highly suggestive circumstances as opposed to simply suggestive conduct." Ibid. But, Chen, like Henderson, has only prospective effect. Id.
Applying these principles, we conclude defense counsel was not ineffective by failing to file a Wade motion, because we are unconvinced the motion would have been successful.
First, defendant argues that Albano's identification was impermissibly suggested by her review of a police report that allegedly identified "Beefy" by his formal name, Lateef Jones. However, the police did not supply the report to Albano. Albano's mother obtained the police report of the shooting and showed it to her daughter. Inasmuch as defendant has presented no evidence that the police directed the mother's action, any suggestiveness does not implicate due process concerns, nor trigger the Manson/Madison test.
Second, there is no cognizable evidence identifying the police report that the victim actually viewed. Neither attorney at trial asked the victim to identify the report from which she first learned in April 2005 that the person she knew as Beefy was Lateef A. Jones. Defendant asserts in his brief, without evidential support, that Albano viewed an April 9, 2004, report in April 2005. That report described a "person involved" as "Lateef A Jones (AKA Beef), a black male." The report also stated, "At approximately 2330 hrs, Sgt. Marcus received an anonymous phone call stating that the shooting of Danielle Albano happened on S. Park St and the shooter was Lateef A Jones AKA Beef."
Third, even if the victim read the cited report, it was not so highly suggestive as to render Albano's identification unreliable. The police report did not include a photograph of defendant. Although Albano did not initially name her attacker, when she did so on May 12, 2004, she described him as "'Beef' or 'Beefy.'" She said that he was a drug dealer on South Park Street; he had dreadlocks; and weighed close to 300 pounds and was about six-feet-one-inch tall. Roughly a month later, Albano identified defendant from a photo array that defendant does not challenge.
Under the totality of the circumstances, there was not a "substantial likelihood of irreparable misidentification." Albano testified that she knew defendant as a drug dealer who objected to her intrusions into his turf. Her statement was corroborated by her arrest and plea to drug offenses, and defendant's arrest for similar offenses, as described in the police reports. Albano saw defendant on numerous occasions, plying his illegal trade, and had repeated face-to-face confrontations. He had threatened to hurt her. She plausibly explained that her failure to identify defendant sooner than she did was not due to an inability to identify her attacker, but a fear to do so. Albano testified with great certainty that defendant was her attacker, once she overcame her reluctance to cooperate with the investigation and ultimately, prosecution. Under the totality of circumstances, we do not view Albano's identification to be unreliable. Therefore, trial counsel was not ineffective by failing to file a motion to exclude it.
Defendant's remaining points lack sufficient merit to warrant extended discussion. R. 2:3-11(e)(2). Although both counsel and the trial judge erred in concluding that the certain persons sentence had to be consecutive, we previously held that the error was harmless. The trial judge was persuaded that a consecutive sentence was warranted apart from any perceived statutory mandate.
Defendant's argument that trial counsel was ineffective by failing to investigate a second alibi witness, Virginia Burton, fails on two grounds. First, defendant did not raise this argument before the trial court, and "[a]n appellate court ordinarily will not consider issues that were not presented to the trial court." State v. Arthur, 184 N.J. 307, 327 (2005) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Second, although Davis, defendant's girlfriend, testified that Burton joined her and defendant in watching television and listening to music at home the night when Albano was shot, defendant presents no prima facie proof that Burton would corroborate Davis's testimony. See Fritz, supra, 105 N.J. at 64-65 (rejecting claim of ineffectiveness based on absent witnesses where defendant does not identify the witnesses nor describe their testimony). Defendant presents no certification from Burton. Consequently, his claim of ineffectiveness rests on a bald assertion.
In sum, defendant has failed to present a prima facie case of ineffective assistance.
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