this is not a public blog, just a place hwere i can leave myself notes. nothing to see here folks, move along.
Saturday, November 16, 2002
has been historically viewed as punishment, also follows Hudson. In Hudson, the Court stated, "neither money penalties nor debarment have historically been viewed as punishment. We have long recognized that 'revocation of a privilege voluntarily granted,' such as a debarment, 'is characteristically free of the punitive criminal element.'" Id. (quoting Helvering, 303 U.S. at
Even if the legislature intended to create a civil penalty, the penalty may still be "criminal" for purposes of double jeopardy analysis. The second step of the analysis requires us to determine "'whether the statutory scheme was so punitive either in purpose or effect,'" id. (quoting Ward, 448 U.S. at 248 -49), to convert the intended civil penalty into a criminal one. To answer this latter question, the Court directs our attention to the factors established in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963). Those seven factors are as follows:
[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment--retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.
[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment--retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.
that the criminal indictment violated the Double Jeopardy Clause of the Fifth Amendment. 2 See id. at *4. The Supreme Court held that the Double Jeopardy Clause did not bar the later criminal prosecution because the administrative proceedings were civil and not criminal. See id. at *8. In so holding, the Court "disavow[ed] the method of analysis used in United States v. Halper, 490 U.S. 435, 448 , 109 S. Ct. 1892, 1901-1902, 104 L.Ed.2d 487 (1989), and reaffirm[ed] the previously established rule exemplified in United States v. Ward, 448 U.S. 242, 248-249 , 100 S. Ct. 2636, 2641-2642, 65 L.Ed.2d 742 (1980)." Id. at *2.
the United States Court of Appeals For the Seventh Circuit
No. 95-2665
MARK B. LEBOW, In Tull v. United States, 481 U.S. 412 (1987), the Supreme Court stated that "[r]emedies intended to punish culpable individuals, as opposed to those intended simply to extract compensation or restore the status quo, were [historically] issued by courts of law, not courts of equity." Id. at 422. Accordingly, the Tull Court held that an
Plaintiff-Appellant,
v.
AMERICAN TRANS AIR, INC.,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 91 C 8063--John F. Grady, Judge. Accordingly, the Tull Court held that an indi- vidual who was sued by the government under the Clean Water Act had a Seventh Amendment right to a jury trial to determine his liability for civil penalties authorized by the Act. Id. at 425. /
In sum, Lebow's claim is similar to common-law tort and contract actions, and he has the right to seek punitive damages, which the Supreme Court has characterized as a legal remedy. Thus, Lebow raises a legal claim, and the Seventh Amendment guarantees his right to a trial by jury. In addition, because ATA would not have been en- titled to judgment as a matter of law, the district court's error in denying him a jury trial was not harmless. Ac- cordingly, we must remand the case for a jury trial. To the extent that Lebow seeks both legal and equitable relief, the jury shall impose any legal relief, while the judge shall impose any equitable relief. See Lytle v. House- hold Mfg., Inc., 494 U.S. 545, 550-52 (1990). The jury, however, decides common issues of fact, and the jury's factual findings are binding on the judge. See id.; Dombeck v. Milwaukee Valve Co., 40 F.3d 230, 236 (7th Cir. 1994). The judgment of the district court is REVERSED, and the case is REMANDED for a jury trial.
ARGUED FEBRUARY 8, 1996--DECIDED JUNE 6, 1996 jeopardy of life or limb." U.S. Const. amend. V. The Supreme Court has long recognized that the guarantee against double jeopardy "protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969); see also Helvering v. Mitchell, 303 U.S. 391, 399 (1938) ("[T]he double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense."). The parties have not contested the elements of double jeopardy other than the second punishment issue; the sole question before us, then, is whether the trading ban imposed by the Commission constitutes the kind of second punishment forbidden by the Double Jeopardy Clause.
No. 95-2665
MARK B. LEBOW, In Tull v. United States, 481 U.S. 412 (1987), the Supreme Court stated that "[r]emedies intended to punish culpable individuals, as opposed to those intended simply to extract compensation or restore the status quo, were [historically] issued by courts of law, not courts of equity." Id. at 422. Accordingly, the Tull Court held that an
Plaintiff-Appellant,
v.
AMERICAN TRANS AIR, INC.,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 91 C 8063--John F. Grady, Judge. Accordingly, the Tull Court held that an indi- vidual who was sued by the government under the Clean Water Act had a Seventh Amendment right to a jury trial to determine his liability for civil penalties authorized by the Act. Id. at 425. /
In sum, Lebow's claim is similar to common-law tort and contract actions, and he has the right to seek punitive damages, which the Supreme Court has characterized as a legal remedy. Thus, Lebow raises a legal claim, and the Seventh Amendment guarantees his right to a trial by jury. In addition, because ATA would not have been en- titled to judgment as a matter of law, the district court's error in denying him a jury trial was not harmless. Ac- cordingly, we must remand the case for a jury trial. To the extent that Lebow seeks both legal and equitable relief, the jury shall impose any legal relief, while the judge shall impose any equitable relief. See Lytle v. House- hold Mfg., Inc., 494 U.S. 545, 550-52 (1990). The jury, however, decides common issues of fact, and the jury's factual findings are binding on the judge. See id.; Dombeck v. Milwaukee Valve Co., 40 F.3d 230, 236 (7th Cir. 1994). The judgment of the district court is REVERSED, and the case is REMANDED for a jury trial.
ARGUED FEBRUARY 8, 1996--DECIDED JUNE 6, 1996 jeopardy of life or limb." U.S. Const. amend. V. The Supreme Court has long recognized that the guarantee against double jeopardy "protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969); see also Helvering v. Mitchell, 303 U.S. 391, 399 (1938) ("[T]he double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense."). The parties have not contested the elements of double jeopardy other than the second punishment issue; the sole question before us, then, is whether the trading ban imposed by the Commission constitutes the kind of second punishment forbidden by the Double Jeopardy Clause.
a jury trial. No circuit has discussed whether an employee suing his employer under the RLA for discharging him because of his union activities is entitled to a jury trial. /8 We con- clude that Lebow has a Seventh Amendment right to pre- sent his claim to a jury.
The Seventh Amendment states that "[i]n suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." By using the phrase "suits at common law," the Constitu- tion mandates jury trials for legal actions but not for equitable actions. Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 564 (1990).
The federal courts have long since abolished the distinc- tion between "courts of law" and "courts of equity;" therefore the Supreme Court has adopted a two-part test to determine whether a claim qualifies as legal or equitable. First, we must "compare the . . . action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature. The second inquiry is the more im- portant in our analysis." Terry, 494 U.S. at 565 (internal citations and quotations omitted); cf. Markman v. West- view Instruments, Inc., 116 S. Ct. 1384, 1389-90 (1996).
Despite the lack of a precise eighteenth-century counter- part, Lebow's unlawful discharge claim, in our view, may be appropriately analogized to a common-law breach of contract action. In Terry, the Supreme Court concluded that although an employee's suit against a union for breach of duty of fair representation had no true eighteenth- century analogue, it was, at least in part, similar to a common-law breach of contract action.
factor in the Terry analysis is the nature of the remedies that a plaintiff wishes to obtain. "The Seventh Amendment . . . requires a jury trial upon demand[ ] if the statute creates legal rights and remedies, enforceable in an action for damages in the or- dinary courts of law." Curtis, 415 U.S. at 194 .
The Seventh Amendment states that "[i]n suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." By using the phrase "suits at common law," the Constitu- tion mandates jury trials for legal actions but not for equitable actions. Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 564 (1990).
The federal courts have long since abolished the distinc- tion between "courts of law" and "courts of equity;" therefore the Supreme Court has adopted a two-part test to determine whether a claim qualifies as legal or equitable. First, we must "compare the . . . action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature. The second inquiry is the more im- portant in our analysis." Terry, 494 U.S. at 565 (internal citations and quotations omitted); cf. Markman v. West- view Instruments, Inc., 116 S. Ct. 1384, 1389-90 (1996).
Despite the lack of a precise eighteenth-century counter- part, Lebow's unlawful discharge claim, in our view, may be appropriately analogized to a common-law breach of contract action. In Terry, the Supreme Court concluded that although an employee's suit against a union for breach of duty of fair representation had no true eighteenth- century analogue, it was, at least in part, similar to a common-law breach of contract action.
factor in the Terry analysis is the nature of the remedies that a plaintiff wishes to obtain. "The Seventh Amendment . . . requires a jury trial upon demand[ ] if the statute creates legal rights and remedies, enforceable in an action for damages in the or- dinary courts of law." Curtis, 415 U.S. at 194 .
Friday, November 15, 2002
test. it's late, i'm drunk and stoned, i have to get up in the morning.
dannon was wonderful tonight. totsboy@hotmail.com. metro idol is a hit. www.metro-indy.com
i wrote several letters and cleared out a lot my hotmail spam. i walked downtown and back.
dumpsterdived lasagna and candied walnuts off mass ave. avacados on my way home. there are now 5 hispanic markets in walking distance... seems like overkill. wwdn is down for the moment.
dannon was wonderful tonight. totsboy@hotmail.com. metro idol is a hit. www.metro-indy.com
i wrote several letters and cleared out a lot my hotmail spam. i walked downtown and back.
dumpsterdived lasagna and candied walnuts off mass ave. avacados on my way home. there are now 5 hispanic markets in walking distance... seems like overkill. wwdn is down for the moment.
Thursday, November 14, 2002
Monday, October 07, 2002
what else? stuff i need to do: call re 34 hamilton deed closing
the injunction was denied by the 7th. need to write up my oral argument.
need to call ag re wiliamson, maybe talk to doug webber. need to do a client letter re williamson.
motion for injunction in taylor v taylor
pay tax on 1625 roosevelt. $320 something. i got the rent today. $250.
look into which properties i'm in curt for how soon, get a lawnmower.
get the starter. send in the oral argument postcard.
the injunction was denied by the 7th. need to write up my oral argument.
need to call ag re wiliamson, maybe talk to doug webber. need to do a client letter re williamson.
motion for injunction in taylor v taylor
pay tax on 1625 roosevelt. $320 something. i got the rent today. $250.
look into which properties i'm in curt for how soon, get a lawnmower.
get the starter. send in the oral argument postcard.
stuff i got done recently:
today monday closed a real estate deal, put $420 in my pocket. gross, so my net might be $200 or so. got the weed trimmer going no luck with the mower.
yesterday. got threatened with arrest at the walmart parking lot. used verbal judo to escape, but was upset for awhile.
saturday - my medicine plants got burglarized
i still haven't written up the episode from 9/25, and i'm likely by now to have forgotten stuff.
today monday closed a real estate deal, put $420 in my pocket. gross, so my net might be $200 or so. got the weed trimmer going no luck with the mower.
yesterday. got threatened with arrest at the walmart parking lot. used verbal judo to escape, but was upset for awhile.
saturday - my medicine plants got burglarized
i still haven't written up the episode from 9/25, and i'm likely by now to have forgotten stuff.
Wednesday, September 25, 2002
to do 9/25/02
- goal for today: do response to objections to injunction pendente lite in majors v abell. i had planned to get that in the mail momday, today is wednesday.
other stuff:
write up series of events re contempt hearing
outline ethical commission complaint
outline counterclaim
prepare discovery docs and response to motion in stewart v h$h.
other stuff: finances
$100 last chance
$insurance claim
$photocopy wishard card
sort out credit card dealie
call re 30&34 hamilton ruth jeffers
misc pending cases
prepare status letter to clients
prepare motion to dismiss re lpin re majors v iec.
call (38th & illionois) re ed gluck, look up ed gluck's contact info.
- goal for today: do response to objections to injunction pendente lite in majors v abell. i had planned to get that in the mail momday, today is wednesday.
other stuff:
write up series of events re contempt hearing
outline ethical commission complaint
outline counterclaim
prepare discovery docs and response to motion in stewart v h$h.
other stuff: finances
$100 last chance
$insurance claim
$photocopy wishard card
sort out credit card dealie
call re 30&34 hamilton ruth jeffers
misc pending cases
prepare status letter to clients
prepare motion to dismiss re lpin re majors v iec.
call (38th & illionois) re ed gluck, look up ed gluck's contact info.
Monday, August 19, 2002
Wednesday, June 19, 2002
todo:
go downtown try to sort out 201 deed.
call or write that lady i met at court yesterday
call? the court to find out status of 3305 hawthorne 327-1010
mow some lawns
go thru phone messages
get docket sheet for majors, germann v iec.
apply at industrial coating services 6233 brookville 322 7450 - referred by tobie kneiss
go downtown try to sort out 201 deed.
call or write that lady i met at court yesterday
call? the court to find out status of 3305 hawthorne 327-1010
mow some lawns
go thru phone messages
get docket sheet for majors, germann v iec.
apply at industrial coating services 6233 brookville 322 7450 - referred by tobie kneiss
Wednesday, June 05, 2002
wednesday: chuck came over and we damn near got the car going. gotta plug the radiator and add water. cost me steep, $103 parts $52 labor, more or less. then just fix the windshield, the frame, get a muffler....
didn't much else done. rained. did dishes last night. done for june :) i think some of these were mj's from like april.
bike has a flat. so that's a to-do, steal the tube from the other bike, install tube.
did: signed lease re 1625 roosevelt. he's bring the rent tomorrow noonish.
did: ran off resumes and went to job fair. mostly a waste of time. have an appointment at steak n shake building Time temps.
got a # for clarion hospital personell office.
Tuesday, June 04, 2002
did list: 6/4/02.
revised brief.
met ken faulk and got 7th cir admission filed. $15.
got 9/29/00 order.
got dsl back on. their screw up, not mine, a billing glitch.
washed mj’s dishes.. grr!
almost finished brief????
“fixed” lawnmower, cut 39 eastern. before it rained. storm on way now.
ordered medication. watered plants.. they seem to have transplant shock.
no food in house. had curry rice. beets tomorrow J
this was the day trevor rented the clownmobile for a twisted show.
chuck “borrowed” $50. rent is going fast.
deposited $200 to bank.
DIDN”T: pay seat belt ticket.
to do: contact 7th cir settlement office, re offer to settle for fees.
all in all a pretty good day.
didn’t: make dtl.
did list060302
internet is down so I’ll blog here.
6/3/02 9:07 PM
Monday.
filed reply to motion for fees.
forgot to call Ken Faulk.
mowed some lawns.
632 temple
531 tacoma ½.
201 eastern
32 eastern – broke the lawnmower on a rock. need to fix by re-bending blade.
39 eastern –small part done.
went to city hall and found out deed to 201 eastern has not been recorded.
need to write letter detailing circumstances. should get ducks in row for 201 hearing 6/10.
need to get info to sean byrd at 205.
spent $6 food. $5 gas.
received $400 joell. not sure what extra $100 was for. cashed oil check – need to deposit so visa payment doesn’t bounce. need to mail seat belt ticket.
need to send in texas taxes. why do I get two notices each year?
so that means, need to go thru folders and find texas tax receipts if any, look for tax certs to be recorded. follow up with that person I met at environmental court re properties.
talk to joell.
write to mom.
did list for Sunday:
wrote to lindy.
printed and mailed reply re prevailing party.
plans for tonight: unicorn.
this week: get radiator.
message to mj.
do: motion to 7th cir requesting extension of time in which to file application for admission. send in the $15 and half-filled-out form.
send in objection to fine re hamilton.
make calls re credit cards.
move car into garage.
what about danny in jail?
go thru threatening zoning letters.
obtain medication?
find out if ross is really working.
revise to do list and create a dtl.
get in gear on other cases – taylor v taylor, mzw, majors v iec.
begin billing finagle for majors v abell. 800 hours @ 200 hrs/yr., 20 hrs/ week first ten weeks per year, except as indicated by time records and docket entries.
buy food. fix car.
later that same night, if 3 am counts…
dannon said hi, gave me a little touch on the arm. nice as hell. it doesn’t take much to satisfy me when it’s the right guy.
then I went to the unicorn. my bartender gave me scotch by mistake. yuck.
ben is 18, he wore a black choker that said “submissive.” yummy. but he’s not really, doesn’t want to be spanked or kiss, so I just get to watch him look pretty. then some guy, perfect little body, shaved head except a cute lil forlock, comes up to me sez “hi robbin”. it was jackie! I waited around and he came and danced for me and we talked a little. I spanked him again – he objected, not to being spanked by me, but having it done at the club, not something he wants to encourage. I spent $12. on the way back home I rode bikes along with some guy who offered to pay me to suck my cock. I turned him down since he wasn’t cute or trustworthy.
telocity 1 888 833 5886
6/4/02 11:20:17 AM on hold
revised brief.
met ken faulk and got 7th cir admission filed. $15.
got 9/29/00 order.
got dsl back on. their screw up, not mine, a billing glitch.
washed mj’s dishes.. grr!
almost finished brief????
“fixed” lawnmower, cut 39 eastern. before it rained. storm on way now.
ordered medication. watered plants.. they seem to have transplant shock.
no food in house. had curry rice. beets tomorrow J
this was the day trevor rented the clownmobile for a twisted show.
chuck “borrowed” $50. rent is going fast.
deposited $200 to bank.
DIDN”T: pay seat belt ticket.
to do: contact 7th cir settlement office, re offer to settle for fees.
all in all a pretty good day.
didn’t: make dtl.
did list060302
internet is down so I’ll blog here.
6/3/02 9:07 PM
Monday.
filed reply to motion for fees.
forgot to call Ken Faulk.
mowed some lawns.
632 temple
531 tacoma ½.
201 eastern
32 eastern – broke the lawnmower on a rock. need to fix by re-bending blade.
39 eastern –small part done.
went to city hall and found out deed to 201 eastern has not been recorded.
need to write letter detailing circumstances. should get ducks in row for 201 hearing 6/10.
need to get info to sean byrd at 205.
spent $6 food. $5 gas.
received $400 joell. not sure what extra $100 was for. cashed oil check – need to deposit so visa payment doesn’t bounce. need to mail seat belt ticket.
need to send in texas taxes. why do I get two notices each year?
so that means, need to go thru folders and find texas tax receipts if any, look for tax certs to be recorded. follow up with that person I met at environmental court re properties.
talk to joell.
write to mom.
did list for Sunday:
wrote to lindy.
printed and mailed reply re prevailing party.
plans for tonight: unicorn.
this week: get radiator.
message to mj.
do: motion to 7th cir requesting extension of time in which to file application for admission. send in the $15 and half-filled-out form.
send in objection to fine re hamilton.
make calls re credit cards.
move car into garage.
what about danny in jail?
go thru threatening zoning letters.
obtain medication?
find out if ross is really working.
revise to do list and create a dtl.
get in gear on other cases – taylor v taylor, mzw, majors v iec.
begin billing finagle for majors v abell. 800 hours @ 200 hrs/yr., 20 hrs/ week first ten weeks per year, except as indicated by time records and docket entries.
buy food. fix car.
later that same night, if 3 am counts…
dannon said hi, gave me a little touch on the arm. nice as hell. it doesn’t take much to satisfy me when it’s the right guy.
then I went to the unicorn. my bartender gave me scotch by mistake. yuck.
ben is 18, he wore a black choker that said “submissive.” yummy. but he’s not really, doesn’t want to be spanked or kiss, so I just get to watch him look pretty. then some guy, perfect little body, shaved head except a cute lil forlock, comes up to me sez “hi robbin”. it was jackie! I waited around and he came and danced for me and we talked a little. I spanked him again – he objected, not to being spanked by me, but having it done at the club, not something he wants to encourage. I spent $12. on the way back home I rode bikes along with some guy who offered to pay me to suck my cock. I turned him down since he wasn’t cute or trustworthy.
telocity 1 888 833 5886
6/4/02 11:20:17 AM on hold
Thursday, May 23, 2002
Wednesday, May 22, 2002
did list 5/22/02 wednesday
it was a rough day emotionally. crying, moaning. been that way for a few days.
bought another lawnmower. $124 including cab fare.
have a load of laundry in.
cut half of 47 s gray
note, got a letter about 201 eastern, hearing june 10th, need to make copy for sean.
got a deed halfway prepared.
need to make a schedule of what lots have been cut when, as evidence of good faith attempt at compliance
gave chuck $10 for mower repair.
almost cut my foot of with the mower :)
it was a rough day emotionally. crying, moaning. been that way for a few days.
bought another lawnmower. $124 including cab fare.
have a load of laundry in.
cut half of 47 s gray
note, got a letter about 201 eastern, hearing june 10th, need to make copy for sean.
got a deed halfway prepared.
need to make a schedule of what lots have been cut when, as evidence of good faith attempt at compliance
gave chuck $10 for mower repair.
almost cut my foot of with the mower :)
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