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Everything you wanted to know about Brzonkala but were afraid to read 100+ pages about
October 23, 2001 − by CIR − in Articles − Comments Off on Everything you wanted to know about Brzonkala but were afraid to read 100+ pages about
(Excerpts from the 113 pages of majority, concurring, & dissenting opinions in Brzonkala v. Virginia Polytechnic Institute)
By Curt A. Levey
Judge Luttig, writing for the majority:
We the People, distrustful of power, and believing that government limited and dispersed protects freedom best, provided that our federal government would be one of enumerated powers, and that all power unenumerated would be reserved to the several States and to ourselves. Thus, though the authority conferred upon the federal government be broad, it is an authority constrained by no less a power than that of the People themselves. "[T]hat these limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 2 L.Ed. 60 (1803). These simple truths of power bestowed and power withheld under the Constitution have never been more relevant than in this day, when accretion, if not actual accession, of power to the federal government seems not only unavoidable, but even expedient.
These foundational principles of our constitutional government dictate resolution of the matter before us. For we address here a congressional statute, Subtitle C of the Violence Against Women Act, 42 U.S.C. § 13981, that federally punishes noncommercial intrastate violence, but is defended under Congress' power "[t]o regulate commerce . . . among the several States," U.S. Const. art. I, § 8, cl. 3, and that punishes private conduct, but is defended under Congress' power "to enforce, by appropriate legislation" the Fourteenth Amendment guarantee that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." Such a statute, we are constrained to conclude, simply cannot be reconciled with the principles of limited federal government upon which this Nation is founded. As even the United States and appellant Brzonkala appear resignedly to recognize, the Supreme Court's recent decisions in United States v. Lopez, 514 U.S. 549 (1995), and City of Boerne v. Flores, 521 U.S. 507 (1997), which forcefully reaffirmed these most basic of constitutional principles, all but preordained as much. . . . [I]n the end, appellants are forced by these two plainly controlling decisions to defend the statute on little more than wistful assertions that United States v. Lopez is an aberration of no significance and that the established precedents upon which City of Boerne v. Flores rested ? United States v. Harris, 106 U.S. 629 (1883), and the Civil Rights Cases, 109 U.S. 3 (1883) ? should be disregarded as insufficiently "modern" to define any longer the reach of Congress' power under the Fourteenth Amendment.
[W]e hold today that section 13981 exceeds Congress' power under both the Commerce Clause of Article I, Section 8, and the Enforcement Clause of Section 5 of the Fourteenth Amendment.
To otherwise hold would require not only that we, as the dissent would do, disclaim all responsibility to "determine whether the Congress has exceeded limits allowable in reason for the judgment which it has exercised," Polish Nat'l Alliance v. NLRB, 322 U.S. 643 (1944), . . . but that we extend the reach of Section 5 of the Fourteenth Amendment beyond a point ever contemplated by the Supreme Court since that Amendment's ratification over a century and a quarter ago. These things we simply cannot do.
The government, joined by Brzonkala, defended section 13981 as an appropriate exercise of Congress' power to regulate interstate commerce on the ground that violence against women is a widespread social problem with ultimate effects on the national economy. They defended section 13981 as an exercise of Section 5 of the Fourteenth Amendment on the grounds that bias and discrimination against women in the state criminal justice systems often deny legal redress to the victims of gender-motivated crimes of violence and that such denials may violate the Equal Protection Clause.
In United States v. Lopez, the Supreme Court held that Congress had exceeded its power to regulate interstate commerce in enacting the Gun-Free School Zones Act of 1990 ("GFSZA"). In so holding, the Court reaffirmed that, although the Commerce Clause represents a broad grant of federal authority, that authority is not plenary, but subject to outer limits. . . . Under the principles articulated by the Court in Lopez, it is evident that 42 U.S.C. § 13981, like the Gun-Free School Zones Act, does not regulate an activity sufficiently related to interstate commerce to fall even within the broad power of Congress under the Commerce Clause.
In demarcating the limits of congressional power to regulate activities that do not themselves constitute interstate commerce, the Court in Lopez made clear that such power does not extend to the regulation of activities that merely have some relationship with or effect upon interstate commerce, but, rather, extends only, as is relevant here, to those activities "having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce." Lopez, 514 U.S. at 558-59 (emphases added).
Furthermore, the Court made explicit that whether an activity "substantially affects" interstate commerce such that it may be regulated under the Commerce Clause "is ultimately a judicial rather than a legislative question."
In clarifying the content of this legal test, the Court specifically identified two types of laws that it had upheld as regulations of activities that substantially affect interstate commerce: (1) "regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce," and (2) regulations that include a jurisdictional element to ensure, "through case-by-case inquiry," that each specific application of the regulation involves activity that in fact affects interstate commerce.
The Court also emphasized that, any dictum in its previous cases notwithstanding, it had never extended the substantially affects test to uphold the regulation of a noneconomic activity in the absence of a jurisdictional element. . . . Most importantly, the Court expressly held that because the Gun-Free School Zones Act "neither regulate[d] a commercial activity nor contain[ed] a requirement that the possession be connected in any way to interstate commerce, it exceed[ed] the authority of Congress '[t]o regulate Commerce . . . among the several States.' "
In contrast to the statutes that the Supreme Court has previously upheld as permissible regulations under the substantially affects test, section 13981 neither regulates an economic activity nor contains a jurisdictional element. Accordingly, it cannot be sustained on the authority of Lopez, nor any of the Court's previous Commerce Clause holdings, as a constitutional exercise of Congress' power to regulate interstate commerce.
While some violent crimes, such as robbery, may be economically motivated and thus at least arguably "economic" in a loose sense, section 13981 is not directed toward such crimes. . . . The statute thus explicitly excludes from its purview those violent crimes most likely to have an economic aspect ? crimes arising solely from economic motives ? and instead addresses violent crime arising from the irrational motive of gender animus, a type of crime relatively unlikely to have any economic character at all.
Similarly, and as appellants concede, section 13981 does not have an "express jurisdictional element which might limit its reach to a discrete set of [gender-motivated violent crimes] that additionally have an explicit connection with or effect on interstate commerce." Lopez, 514 U.S. at 56. Although the criminal statutes enacted by Congress as part of the Violence Against Women Act predicate liability on the crossing of state lines or the entering or leaving of Indian country, section 13981 includes no similar jurisdictional requirement.
Lopez affirms that we must evaluate carefully the implications of our holdings upon our federal system of government and that we may not find an activity sufficiently related to interstate commerce to satisfy the substantially affects test in reliance upon arguments which, if accepted, would eliminate all limits on federal power and leave us "hard pressed to posit any activity by an individual that Congress is without power to regulate." Lopez, 514 U.S. at 564. This is so especially when the regulated activity falls within an area of the law "where States historically have been sovereign." Lopez, 514 U.S. at 564.
Lopez, therefore, is emphatic that the scope of the interstate commerce power
"must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government."
Lopez, 514 U.S. at 557 (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)).
As in Lopez, appellants rely in essence on the costs of violent crime (including the deterrence of interstate travel and other similar interstate activities) and on decreased national productivity (including reduced employment, production, and demand), both of which ultimately affect the national economy, and presumably interstate commerce as well. But as the arguments are the same, so also does the Supreme Court's categorical rejection in Lopez of such attenuated links to interstate commerce gain control.
[T]o the extent that section 13981's remedy is limited to violent acts constituting felonies as defined by state law, the statute provides a remedy for such conduct, "whether or not those acts have actually resulted in criminal charges, prosecution, or conviction." 42 U.S.C. § 13981.
Thus, not only does section 13981 provide a federal remedy for violent crime in addition to those remedies already provided by the laws of the States ? thereby increasing the total penalty for such crime ? it also provides such a remedy for violence that the States would leave unpunished, whether for reasons of state criminal-law policy, prosecutorial discretion, or state tort-law policy.
Section 13981 also sharply curtails the States' responsibility for regulating the relationships between family members by abrogating interspousal and intrafamily tort immunity, the marital rape exemption, and other defenses that may exist under state law by virtue of the relationship that exists between the violent actor and victim. Although Congress may well be correct in its judgment that such defenses represent regrettable public policy, the fact remains that these policy choices have traditionally been made not by Congress, but by the States.
While we do not question the significance of the problems posed by violence arising from gender animus, Lopez confirms that such significance, standing alone, simply does not provide a meaningful limitation on federal power, and that a problem does not become a constitutionally permissible object of congressional regulation under the Commerce Clause merely because it is serious. . . . Such a sweeping interpretation of the Congress' power would arrogate to the federal government control of every area of activity that matters, reserving to the States authority over only the trivial and the insignificant.
In short, to hold that an attenuated and indirect relationship with interstate commerce of the sort asserted here is sufficient to bring within Congress' power to regulate such commerce the punishment of gender-motivated violent crime, an activity that has nothing to do with commerce and that has traditionally been regulated by the States, we would have to do what the Supreme Court has never done, and what the Lopez Court admonished us not to do: "pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States" and "conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local." Lopez, 514 U.S. at 567-68. Like the Supreme Court, "[t]his we are unwilling to do."
To the extent that appellants even acknowledge the precedential force of Lopez, they attempt to distinguish that decision primarily in two ways. First, they argue that here, unlike in Lopez, the relationship between the regulated activity and interstate commerce upon which they rely is not just identified by them alone, but is also documented by congressional findings to which we are obliged to defer. Second, they contend that section 13981 regulates conduct implicating civil rights, that civil rights is an area of manifest federal concern, and that therefore the regulation of the conduct here, despite its noneconomic character and its lack of a close connection to interstate commerce, does not offend the first principles of federalism.
[B]ecause the question of whether particular activities "affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question," Lopez, 514 U.S. at 557 n. 2, we cannot sustain a statute solely on the strength of a congressional finding as to the factual relationship between a particular activity and interstate commerce. Instead, we must undertake an "independent evaluation" to determine whether, as a legal matter, the substantially affects test is satisfied. Lopez, 514 U.S. at 562.
The Court did not reject as insufficient the relationship between guns in school zones and interstate commerce asserted by the government and the dissents because it deemed that relationship opaque or dubious, but rather that it did so for the reason that it explicitly stated: accepting such indirect and attenuated relationships as sufficient to justify congressional regulation would render unto Congress a power so sweeping as to leave the Court "hard pressed to posit any activity by any individual that Congress is without power to regulate." Lopez, 514 U.S. at 564.
Had the Court in Lopez intended so to elevate the existence or non-existence of findings or a formal legislative record, its holding that the Gun-Free School Zones Act exceeded Congress' power under the Commerce Clause would have constituted not a substantive limitation on congressional power, but rather a mere procedural hurdle ? in essence, a remand to Congress to make formal findings or compile a formal record.
Appellants also argue that section 13981 is a "civil rights" statute, and as such cannot offend the first principles of federalism because civil rights represents an area of "quintessential federal responsibility."
It is unquestionably true that Congress has traditionally assumed an essential role in enacting legislation to protect civil rights and to root out discrimination and its vestiges. However, the Congress has never asserted a general authority, untethered to any specific constitutional power, to enact such legislation. And the Supreme Court has never upheld such legislation solely for the reason that it is civil rights in character.
Despite their half-hearted attempts to distinguish Lopez, it is apparent that, ultimately, Brzonkala and the government (not to mention the dissent) would have us ignore that decision altogether. Not only do appellants clearly, though mistakenly, regard Lopez as at most a decision of little importance, they also make no serious attempt to come to grips with the core reasoning of that opinion. . . . Unlike Brzonkala and the government, however, we are unwilling to consign the Supreme Court's most significant recent pronouncement on the Commerce Clause to the status of inconvenient but ultimately insignificant aberration.
Although Lopez undoubtedly preserves a healthy degree of judicial deference to reasonable legislative judgments of fact, it is plain that appellants do not by their incessant invocations of "rational basis review" contemplate merely such deference. Rather, it is evident that they use this fashionable label of judicial restraint to disguise their advocacy of a deference so absolute as to preclude any independent judicial evaluation of constitutionality whatsoever ? a deference indistinguishable from judicial abdication. And the dissent does likewise; indeed, laying bare appellants' and the dissent's standard of review to an extent that will surely prove disquieting to appellants, the dissent, after announcing the "rational basis" standard of review, offers not a single sentence ? not one ? of independent analysis of whether gender-motivated violence substantially affects interstate commerce.
Whether one agrees or disagrees with our conclusion, it is the majority, not the dissent, that has undertaken the "rational basis" review contemplated by the Court in Lopez. . . . In this undertaking emphatically required by the Supreme Court in Lopez, appellants would have us only half-heartedly engage and the dissent would have us engage not at all.
The only other argument, which appellants advisedly forgo, is that of our colleagues in dissent, who would, in blissful denial of the Court's most recent precedents on Our Federalism, proceed to import into Commerce Clause analysis a doctrine whose legitimacy even in the context in which it was fashioned was in doubt from inception, see Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), and hold that Congress alone is constitutionally responsible for the protection of the sovereign States.
As Lopez forcefully reminds us, our federal system of government exists not as a mere matter of legislative grace, as the dissent (and ultimately appellants) would have, but rather as a matter of constitutional design.
Although in the wake of City of Boerne appellants have returned to defend section 13981 primarily as a constitutional exercise of Congress' power under the Commerce Clause, they still contend alternatively, though now less enthusiastically, that section 13981 is a constitutionally legitimate exercise of Congress' power under Section 5, one of the explicit bases upon which section 13981 was enacted.
The Fourteenth Amendment, of course, provides in pertinent part as follows:
Section 1. No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Appellants maintain that Congress properly invoked Section 5 in enacting section 13981 because Congress concluded that bias and discrimination against women in the state criminal justice systems "often deprive[ ] victims of crimes of violence motivated by gender of equal protection of the laws and the redress to which they are entitled" and that section 13981 was "necessary to guarantee equal protection of the laws." H.R. Conf. Rep. No. 103-711, at 385.
Section 13981 creates a cause of action against private parties who commit acts of gender-motivated violence, and that action may be pursued without regard to whether the State connived in those acts or otherwise violated the particular plaintiff's constitutional rights. To sustain section 13981 under Section 5 of the Fourteenth Amendment, therefore, we would have to hold that Section 5 permits Congress to regulate purely private conduct, without any individualized showing of unconstitutional state action. Because, under the Amendment's text, its history, and a consistent line of Supreme Court precedent dating from just after the Amendment's ratification to the present, it is established that Congress may not regulate purely private conduct pursuant to its Fourteenth Amendment enforcement power, we cannot so hold.
[T]he complaint in the instant case, which clearly states a claim under the statute ? at least as to appellee Morrison ? does not even intone, much less allege, that appellees Morrison or Crawford are state actors, that they acted under color of state law, or that they otherwise conspired with state officials to deprive appellant Brzonkala of her rights guaranteed by the Equal Protection Clause.
[L]iability under section 13981 attaches without regard to whether the State adequately enforced its applicable criminal or civil laws. The statute even applies where, as here, no prior criminal or state civil complaint was even filed.
This is precisely the type of statute that the Supreme Court warned over a century ago would, if held valid under Section 5 of the Fourteenth Amendment, authorize a congressional "municipal code" through which the federal government could act directly upon all the rights of life, liberty, and property of all citizens and thereby eliminate altogether any role for the several States.
[A]lthough appellants concede, as they must, that wholly private acts of gender-motivated violence can never violate the Equal Protection Clause, they nonetheless contend that, under the Katzenbach v. Morgan, 384 U.S. 641 (1966), and South Carolina v. Katzenbach, 383 U.S. 301 (1966), line of cases, Congress may regulate such private violence as a means of remedying the bias and discrimination against women in the States' criminal justice systems, which "often deprive[ ] victims of crimes of violence motivated by gender of equal protection of the laws and the redress to which they are entitled," H.R. Conf. Rep. No. 103-711, at 385.
Appellants are doubtless correct that Congress may, pursuant to Section 5, prophylactically regulate or proscribe certain state conduct that does not violate Section 1 of the Fourteenth Amendment. In the prophylactic cases, however, the Court has only upheld federal statutes that prohibited state action; it has never upheld statutes, like section 13981, that prohibited private action. None of the prophylactic cases (nor any other Supreme Court case) holds or suggests that Congress may employ such a rationale to reach purely private conduct.
Rather than grapple with this basic textual, historical, and precedential distinction between laws regulating state action and laws regulating private conduct, the government instead resorts to speculation and hypothesizing as to why Congress' power to regulate state action that does not necessarily violate the Fourteenth Amendment entails a congressional power to regulate private conduct that can never violate the Fourteenth Amendment.
The government maintains . . . that in enacting section 13981, Congress might have chosen to regulate private action, rather than the States directly, so as not to offend the sovereignty of the States. This argument, however, confuses the Fourteenth Amendment with the Commerce Clause and other similar grants of federal power. The Supreme Court has often held that it violates principles of state sovereignty for the federal government to impose certain obligations directly upon the States when acting pursuant to the federal power to regulate interstate commerce and various other federal powers. However, the Court has made clear that, by its very nature, the Fourteenth Amendment is a limitation on the governments of the States.
In sum, the prophylactic cases such as City of Boerne, Morgan, and Katzenbach all address the question of how broadly Congress may legislate when it imposes statutory requirements upon the States pursuant to Section 5. These cases do not address the very distinct question of whether Congress may, under Section 5, regulate purely private conduct at all. The answer to this latter question has been settled for over a hundred years. . . . To conflate these two lines of cases, and thereby allow a complete disjunction between the constitutional evil to be remedied and the object of Congress' legislation, would be nothing less than to recognize in the Congress itself, contrary to the Constitution, an authority to redefine the scope of the substantive provisions of the Fourteenth Amendment. And as the Supreme Court observed in City of Boerne, Congress does not enforce a constitutional right by changing what the right is. It has been given the power "to enforce," not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the "provisions of [the Fourteenth Amendment]." City of Boerne, 117 S.Ct. at 2164.
By invalidating the Religious Freedom Restoration Act, the Supreme Court in City of Boerne reaffirmed the principle that, in order to secure a federal government of limited and enumerated powers, congressional legislation enacted pursuant to Section 5 must be carefully scrutinized by the courts to ensure that Congress is truly enforcing the provisions of the Fourteenth Amendment, rather than redefining the substance of those provisions under the guise of enforcement. . . . To this end, the Court declared that a court entertaining a Section 5 challenge can uphold the statute only if there exists a "congruence and proportionality between the [constitutional] injury to be prevented or remedied and the means adopted to that end," or, in other words, only if the statute is actually aimed at, and is a closely tailored means of, enforcing a provision of Section 1. The Supreme Court then applied this "congruence and proportionality" test to the Religious Freedom Restoration Act and concluded that the statute exceeded Congress' powers under Section 5.
Ultimately, City of Boerne forcefully affirms that Congress' power under Section 5 is not without limits,and that those limits are not simply theoretical or speculative, but are real and concrete, and are to be enforced by the courts, even at the expense of invalidating laudable and otherwise socially beneficial legislation.
[I]t is clear under City of Boerne that we cannot simply defer wholesale to Congress' purely legal conclusion that "bias and discrimination in the criminal justice system[s of the States] often deprives victims of crimes of violence motivated by gender of equal protection of the laws and the redress to which they are entitled." Indeed, as a legal conclusion, this particular finding may be worthy of little, if any, deference. The finding is an essentially verbatim recitation of the congressional testimony of a single law professor [Cass Sunstein], and it was added to the legislative history only after that law professor testified that such a "finding" would be instrumental in defending the constitutionality of section 13981 under Section 5. This finding thus appears to be less a considered congressional judgment as to the constitutionality of section 13981 than legal boiler plate belatedly appended to the House Conference Report in an effort to insulate section 13981 from judicial review. Moreover, even if this finding did represent a considered congressional judgment as to the constitutionality of section 13981, the soundness of that judgment is drawn into question by the fact that Congress also "found" ? contrary to Supreme Court precedent applying the Equal Protection Clause only to state action ? that purely private acts of violence against women also "threaten women's equal protection of the laws."
Although appellants are doubtless correct that the legislative history of the Violence Against Women Act ? a statute that includes but is not limited to section 13981 ? comprises an impressive array of reports and hearings detailing the scope of the problem of violence against women, . . . the record recites few, if any, specific findings that the States are engaging in unconstitutional discrimination against women in the enforcement or application of their criminal and civil laws.
If anything, the hearings and reports on section 13981 bear out that the States and state law enforcement officials are not purposefully discriminating against women in the enforcement of laws against gender- motivated crimes of violence, but rather that they have undertaken the "most fervent," S.Rep. No. 102-197, at 39, and "sincere efforts . . . to assist . . . victims of rape and domestic violence," S. Rep. No. 101-545, at 33 . . . cf. Hearing Before the Comm. on the Judiciary, United States Senate (1993) (noting that every State in the union has adopted legislation authorizing protective orders for victims of domestic violence, and use of such orders has increased dramatically); Hearing Before the Subcomm. on Crime and Criminal Justice of the Comm. on the Judiciary, House of Representatives (1994) (results of Attorneys General survey that "[t]hroughout the country, Attorneys General have developed innovative projects to prevent domestic violence" and "have produced a number of excellent resources to prevent sexual violence in their States"); Hearings Before the Comm. on the Judiciary, United States Senate (1993) (noting "a spirit and commitment" in the States to address problem of violent crime against women).
The structure of section 13981 and other provisions of the VAWA further confirm the lack of congruence between the statute and its asserted aim of addressing purposefully unequal law enforcement by the States. . . . For example, if a State consistently refuses to prosecute rapists because of its gender animus against their female victims, the victim's ability to obtain some small measure of justice through federal damages suits against the rapist would hardly eliminate or correct the State's constitutional violations.
Other features of the statute likewise belie the suggestion that section 13981 is designed to remedy purposeful discrimination against women by the States. For example, section 13981 vests the state courts with concurrent jurisdiction over section 13981 claims. . . . If Congress were truly concerned that state courts, judges, and juries were hostile to women and purposefully discriminating against them in the enforcement and application of law, the more natural response would have been to create exclusive federal jurisdiction over section 13981 claims.
The conclusion that Congress did not design section 13981 as a remedy for purposeful discrimination against women by hostile state courts is also borne out by features of the VAWA whose constitutionality is not at issue here. For example, in addition to creating a private cause of action, other provisions of the VAWA appropriated approximately $1.6 billion in federal funds, subject to enhancement, to help the States eliminate the causes and effects of rape and domestic violence. Such a generous subsidy to the state governments casts serious doubt upon any suggestion that the Congress that enacted section 13981 was truly concerned with purposeful and unconstitutional deprivations of Equal Protection rights at the hands of hostile state governments.
In sum, the combined effect of the legislative history, the structure of section 13981, and the other provisions of VAWA is to disprove any contention that section 13981 was actually aimed at purposeful acts of unconstitutional sex discrimination. . . . To the contrary, these materials establish that Congress' true concerns in enacting VAWA were to deter or remedy individual and private acts of violence and to raise public consciousness about the seriousness of violent crimes against women by sending a national signal of opposition to this class of violent crime. Although these are unquestionably worthy public policy goals, they are not sufficient in and of themselves to render section 13981 a legitimate exercise of Congress' power under Section 5 of the Fourteenth Amendment.
Even if section 13981 were intended as a means to remedy unconstitutional discrimination by the States, it, much like the provisions of the Religious Freedom Restoration Act invalidated in City of Boerne, is so out of proportion to any possible unconstitutional state action at which it might conceivably be aimed as to exceed congressional power to "enforce" the Fourteenth Amendment. Liability under section 13981 . . . attaches to any criminal act, whether or not the plaintiff filed a criminal complaint in the state criminal justice system, and without regard to whether the State failed adequately to investigate or prosecute the case because of bias or discrimination. Section 13981 applies equally in all jurisdictions, whether those jurisdictions evidence a pattern of chronic under-enforcement of laws prohibiting rape and domestic violence or whether those jurisdictions are the States or metropolitan areas Congress applauded for strengthening the enforcement of their rape and sexual assault laws.
If the congressional findings cited here suffice to render section 13981 a legitimate enforcement of the Fourteenth Amendment, then in effect the federal government could constitutionally regulate every aspect of society, even including those areas traditionally thought to be reserved exclusively to the several States, such as general criminal and domestic relations law. For example, if section 13981 were an appropriate means to remedy gender-motivated bias in the States, then the federal government could similarly adopt a general federal criminal code to replicate or preempt the existing criminal laws of the fifty States in order to root out any such bias. Presumably, the very same or similar legislative record of section 13981 could support an analogous finding that all state criminal laws are infused with gender bias. And many of the same state gender-bias task forces that were cited in section 13981's legislative history also appear to find gender bias in state domestic-relations law. Thus, if section 13981 were constitutional under Section 5, then presumably the federal government could adopt and enforce a federal divorce and domestic relations code. And federal preemption, or even occupation, of other substantive fields of law, such as tort and contract law, would soon follow.
At the end of the day, it is apparent that, for objectives unquestionably laudable, Congress . . . has sought to reach conduct quintessentially within the exclusive purview of the States through legislation that neither conditions the federal intervention upon proof of misconduct imputable to a State or upon a nexus to interstate commerce, nor is tailored so as to address activity closely connected with constitutional failures of the States or with interstate commerce. This the Congress may not do, even in pursuit of the most noble of causes, lest be ceded to the Legislature a plenary power over every aspect of human affairs ? no matter how private, no matter how local, no matter how remote from commerce.
We are not unaware that in invalidating section 13981 today, we invalidate a provision of a statute denominated the "Violence Against Women Act." No less for judges than for politicians is the temptation to affirm any statute so decorously titled. We live in a time when the lines between law and politics have been purposefully blurred to serve the ends of the latter. And, when we, as courts, have not participated in this most perniciously machiavellian of enterprises ourselves, we have acquiesced in it by others, allowing opinions of law to be dismissed as but pronouncements of personal agreement or disagreement. The judicial decisionmaking contemplated by the Constitution, however, unlike at least the politics of the moment, emphatically is not a function of labels. If it were, the Supreme Court assuredly would not have struck down the "Gun-Free School Zones Act," the "Religious Freedom Restoration Act," the "Civil Rights Act of 1871,"or the "Civil Rights Act of 1875." And if it ever becomes such, we will have ceased to be a society of law, and all the codification of freedom in the world will be to little avail.
Chief Judge Wilkinson, concurring:
As this century draws to a close, it seems appropriate to examine the course of its jurisprudence and the place of this case within it. The decision before us is an especially difficult one because it pits the obligation to preserve the values of our federal system against the imperative of judicial restraint.
I agree that section 13981 of the Violence Against Women Act exceeds the authority of Congress under both the Commerce Clause and Section 5 of the Fourteenth Amendment. Our ruling reaffirms the fundamental principle that our national government is one of enumerated ? and therefore limited ? powers.
Nonetheless, it is a grave judicial act to nullify a product of the democratic process. The hard question is whether our decision constitutes an indefensible example of contemporary judicial activism or a legitimate exercise in constitutional interpretation. . . . I would add to that cautionary tale not only the judiciary's parallel experience with economic due process but also the activist legacy of the Warren and early Burger Courts. By considering today's decision in light of history's often cold assessment of the product of those prior eras, we may ascertain whether we forsake to our peril the high ground of judicial restraint.
Judicial activism in this century falls into three general stages. The first, beginning roughly with the decision in Lochner v. New York, 198 U.S. 45 (1905), and continuing through the early New Deal, has come to symbolize judicial activism taken to excess.
The century's second era of judicial activism was more social than economic in nature. . . . Unlike the first era, which sought at least in part to protect the states against the encroachments of the federal legislature, the cases of this second era uniformly restricted the states' authority. The Court accomplished this in two ways. In some cases it incorporated the Bill of Rights against the states through the Fourteenth Amendment's Due Process Clause. In other instances it formulated new rights from the Bill of Rights.
The Warren and early Burger Courts focused on finding new substantive rights in the Constitution and downplayed that document's structural mandates. Although many of its individual decisions were overdue and salutary, when the era is considered as a whole, the states were relegated to a second-class constitutional status. As states themselves began to respect the civil rights of all their citizens, however, the justification for additional restrictions began to wear thin. And because "the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union," Gregory v. Ashcroft, 501 U.S. 452, 457 (1991) (quoting Texas v. White, 74 U.S. 700, 725 (1868)), this second era of activism presaged ? and indeed guaranteed ? a cyclical correction.
This century's third and final era of judicial activism probably began with New York v. United States, 505 U.S. 144 (1992), in which the Supreme Court held that the "take title" provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985 impermissibly coerced the states into passing legislation. Since that time, the Court has issued a spate of decisions striking federal enactments that exceeded Congress' authority at the expense of the states.
The common thread of contemporary activism is an interest in reviving the structural guarantees of dual sovereignty. For instance, Congress may not stretch the commerce power so far as to regulate noncommercial areas of traditional state concern ? activity that "has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms." Lopez, 514 U.S. at 561. Nor may Congress "define its own powers by altering the Fourteenth Amendment's meaning." City of Boerne, 117 S.Ct. at 2168. The Court has preserved the states' immunity in federal court, defending their right not to be sued without consent. See Seminole Tribe, 517 U.S. 44. It has enforced the "etiquette of federalism," Lopez, 514 U.S.at 583 (Kennedy, J., concurring), barring Congress from "commandee[ring] the legislative processes of the States," New York, 505 U.S. at 161, and forbidding the national government from "impress[ing] the state executive into its service" by "command[ing] the States' officers . . . to administer or enforce a federal regulatory program." Printz, 117 S.Ct. at 2371, 2384.
Taken as a whole, the decisions preserve Congress as an institution of broad but enumerated powers, and the states as entities having residual sovereign rights.
Will the current era of judicial scrutiny stand the tests of time and public acceptance any better than the prior eras have? The facial similarities between the present jurisprudence and the New Deal era underscore the dilemma. Yet upon closer scrutiny, the current wave of judicial decisions bears little relation to those which crested early in this century. If one remains attentive to the pitfalls of the past, the present jurisprudence holds the promise to be an enduring and constructive one, for its aims and means differ significantly from those of prior eras.
As an initial matter, the outcomes of the current era have not consistently favored a particular constituency. In the first era of activism, courts were widely perceived as choosing sides with business interests in the political debate over the expansion of federal and state regulatory power and the abandonment of laissez-faire.
Unlike the cases of the first era, the decisions of the third era display no pattern of favoritism. In fact, the results are unfavorable to a variety of interests. As a matter of oxen, the gored are determined by infringements upon our federal system, not by judicial disdain for enacted policies.
The nature of textual interpretation in the third era also differs from the prior two.
Courts [in the third era] are not motivated by a desire that a particular substantive meaning be given to a constitutional term such as commerce, but instead by the duty to find that some meaning must exist. The question now is not what the proper allocation of economic regulatory power ought to be, but whether the states will have any subjects of social welfare to call their own.
Identifying the connection between commerce and the traditional, noneconomic state concerns addressed by section 13981, however, would require the courts to "pile inference upon inference," in the end sanctioning a commerce power without any limitations. Lopez, 514 U.S. at 567. Although the appellants have presented able arguments in support of section 13981, the Commerce Clause must contain some limitations if its language is not to be completely excised from the Constitution. The choice we face is between minimal invalidation of congressional intrusion and complete abdication of our interpretive duty. To choose the latter would be to depart from the judicial role of constitutional arbiter set forth nearly two centuries ago in Marbury v. Madison.
[I]t is hard to understand how one can argue for giving capacious meanings to some constitutional provisions while reading others out of the document entirely. Here, appellants suggest that we give a reading that would rob all meaning from the phrase "Commerce . . . among the several States," giving Congress a blanket power simply "To regulate." It seems patently inconsistent to argue for a Due Process Clause that means a great deal and a Commerce Clause that means nothing. How one clause can be robust and the other anemic is a mystery when both clauses, after all, are part of our Constitution.
Finally, our role in this modern era is not as substantive adjudicators, but as structural referees. The due process decisions of the Lochner and Warren Court eras, as well as the individual rights rulings of the latter, attempted to remove the subject matter of those cases from political debate altogether. Those decisions prevented the people from seeking resolutions of their differences through their popularly elected representatives ? federal and state. By contrast, the present jurisprudence of federalism is purely allocative, standing for the simple proposition that the Constitution does not cast states as mere marionettes of the central government. This jurisprudence removes no substantive decision from the stage of political debate. Nor does this decision command those seeking to protect the rights of women to exit the arena. States remain free after New York to reach regional solutions to their hazardous waste problems, after Lopez to criminalize the act of bringing a firearm within a school zone, after Printz voluntarily to cooperate with federal law enforcement efforts, and after today's decision to provide civil remedies to women who are battered or raped. No court blocks the path of legislative initiative in any of these substantive areas.
Instead of aggressively pursuing substantive preferences, this court validates a structural principle found throughout the Constitution. Federalism is the shining gem cut by the Founders. It remains the chief contribution of America to democratic theory and the structural guarantor of liberty and diversity for the American people.
The present controversy is a highly charged one. Some will doubtless be amazed that a federal court could find section 13981 unconstitutional when every American of good will abhors violence against women. Of course, incursions on dual sovereignty will always carry a measure of democratic sanction, representing as they do the enactments of the elected branches of government. Still, the structural dictates of dual sovereignty must not ebb and flow with the tides of popular support.
VAWA's civil suit provision falters for the most basic of reasons. Section 13981 scales the last redoubt of state government ? the regulation of domestic relations. By attaching civil penalties to criminal, but domestic, conduct, section 13981 "by its terms has nothing to do with 'commerce.' " Lopez, 514 U.S. at 561. Appellant's defense of the provision rests on the same analogy rejected in Lopez ? that of attenuated causation to national productivity.
Section 13981 cannot be sustained under Section 5 of the Fourteenth Amendment for some of the same reasons that it cannot be sustained as an exercise of the commerce power. . . . If Section 5 alone were read to allow Congress to regulate private (and often purely domestic) conduct, it would, just like an unlimited reading of the Commerce Clause, intrude on what has traditionally been the core of the state police power. From whatever vantage point one views the case, the rent in the fabric of our federalism would be profound.
The dissent simply rewrites the Constitution to its taste. It promotes a congressional power without limitation. Under this view, two pillars of our government will crumble: The courts would have almost no role in structural disputes and the states would play no more than a bit part in our federal system.
The restraints the dissent proposes to prevent this constitutional undoing are wholly ineffectual. First, the dissent argues that Congress can act under the Commerce Clause when it seeks to supplement, not supplant, state actions. But practically any exercise of congressional power can be artfully characterized as "supplementary." Second, if congressional enactments can conceivably be called civil rights statutes, then according to the dissent the judiciary must abdicate its role. Of course, most civil rights statutes should and will be sustained under the Commerce Clause. But statutes are not free from constitutional scrutiny solely because of their characterization as civil rights enactments. Third, the dissent asserts that in areas where states cannot "handle the problem," enumerated powers are converted into plenary ones. In practice, this will mean that when the state experimentation that our federal system envisages does not take the precise form that Congress prefers, Congress can impose a uniform rule.
Through these unexamined labels and glib formulas, none of which have any foundation in Supreme Court case law, the dissent would sweep the role of the judiciary and the place of the states away. The dissent's response is that the states can fend for themselves in the political system. This, however, ignores the vast temptation on the part of Congress to attempt the solution of any and all of our problems, no matter how remote from commerce they may be.
Today's holding is a measured one. To sustain this provision would signal that state governments are due no more than the sweet pieties of lip service and that no limits whatsoever exist on the exercise of congressional power.
Judge Niemeyer, concurring:
I join the thorough opinion for the court, concluding that neither the Commerce Clause nor Section 5 of the Fourteenth Amendment provides Congress authority to enact the Violence Against Women Act of 1994 (this section hereafter referred to as "VAWA" or the "Act"). The broad, virtually limitless reach of VAWA into all violence motivated by gender, including domestic violence, whether implicating interstate commerce or not, far exceeds these constitutionally enumerated powers which were intended to be specific and limited grants of federal legislative authority. As the Tenth Amendment states, if a power is not delegated to the United States or prohibited to the States by the Constitution, it is reserved to the States or to the people.
Established Supreme Court precedent points to the existence of limits to the commerce power and defines these limits through two separate modes of analysis. Under one mode, the limits of the commerce power are defined by a federal regulation's nexus to interstate commerce. Under the other, the Court has observed that an overly broad exercise of the commerce power can be recognized when the exercise substantially infringes the general police power retained by the states under the Tenth Amendment.
At oral argument, the government was pressed at some length to articulate its position on how to define the line between a national interest subject to regulation under the Commerce Clause and a local interest which is beyond the scope of Congress' legislative power. It continually refused to accept the challenge, leaving me with the clear impression that if the political pressure were sufficiently great, the government would feel justified in maintaining the position that Congress could constitutionally regulate local matters, such as divorces and, indeed, even child custody proceedings. Under the impact-on-the-economy test relied on by the government, Congress could rationalize a regulation of these important but traditionally local activities simply by amassing the obviously available economic data showing their aggregate impact on the national economy.
In The Federalist No. 45, James Madison wrote:
The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. . . . The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.
[I]n Lopez, the Court reiterated that the Commerce Clause may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.
Lopez, 514 U.S. at 557 (quoting Jones & Laughlin Steel, 301 U.S. at 37) (emphasis added). Thus, we may conclude that intrastate activities may be regulated under the Commerce Clause, but only if their relationship to interstate commerce is close and intimate and not "indirect and remote."
The requirement that a local activity which Congress seeks to regulate not be "remote" in effect on interstate commerce is distinct from the "direct effect" requirement and draws into question the proximateness of the activity's causal effect on interstate commerce. When examining remoteness, we can draw on well established tort principles of proximate cause, asking whether the local activity would stand next in its causation to the effect on interstate commerce and whether its impact is slight or incidental. In order not to be remote, an effect must be proximate and intimately related to interstate commercial activity.
Thus, to determine whether an intrastate activity substantially affects interstate commerce and therefore is neither indirect nor remote, I would apply a test which requires that (1) the target of any federal regulation of an intrastate activity must be interstate commerce, even though it may not be the purpose of the regulation, and (2) the effect that the activity has on interstate commerce must be proximate and not incidental.
In addition to being so limited, the commerce power is also limited to regulating commerce. If not inherently clear, this was explicitly pointed out in Lopez.
Congressional findings on whether violence involving women has an adverse effect on the economy are just as irrelevant to the proper Commerce Clause analysis as were Executive Branch findings that gun violence had an adverse economic impact. Lopez held that this type of relationship between non-economic activity and the economy does not make the regulated activity subject to regulation under the Commerce Clause.
In sum, a statute depending for its validity on the Commerce Clause power must ultimately both be a regulation that reaches intrastate activity only to the extent necessary to regulate interstate commerce and be an economic regulation.
If, in regulating interstate commerce, Congress necessarily must regulate local activity which has a substantial effect on the interstate commerce it seeks to regulate, then it may do so as long as the overall regulatory scheme is aimed at the protection or promotion of interstate commerce. . . . Instead, VAWA aims at a social ill which only incidently affects interstate commerce. In that sense, the regulated conduct's effect on commerce can only be characterized as "indirect."
It is self-evident that if the scope of the commerce power is defined too broadly, our national government would no longer be one of enumerated ? and hence limited ? powers. This observation brings me to the second method for discerning the limits of the Commerce Clause's scope. If a federal regulation ostensibly justified by the Commerce Clause unduly infringes on the general police power, a power that was never conferred on the national government, it follows that such regulation exceeds the limited federal power.
The Supreme Court most recently observed as much in Lopez, noting that the Constitution withholds "from Congress a plenary police power that would authorize enactment of every type of legislation."
Because the general police power is recognized to include the right of the States to promote the public health, safety, welfare, and morals of the State, it is not disputed that redress for assault and rape traditionally falls within the States' police power.
Moreover, the redress of sexual assaults and rape is a police power that the States, including Virginia, have traditionally exercised. Virginia law at the time that Brzonkala was attacked identified various crimes whose prosecution might cover the attacks on her. . . . Moreover, Brzonkala would have civil claims against her attackers under established tort principles.
Finally, as Virginia has asserted in its brief in this case, it enforces its sexual assault laws and in practice provides victims with "an array of remedies against the perpetrators to redress [these] wrong[s]." Statistical data confirm this assertion. . . . [T]he Virginia courts' compliance with sentencing guidelines for rape is over 90% and their compliance with sexual assault recommendations is over 70%. More revealing is the fact that the greater noncompliance in sexual assault cases can be attributed to the courts' treating sexual offenders more harshly than the guidelines recommend.
In summary, the Commerce Clause authorizes Congress to regulate commerce among the States, i.e., the intercourse of economic activity among the States, and local activity insofar as it substantially affects interstate commerce. . . . Because VAWA regulates intrastate activity too broadly, detaching itself from any semblance of regulating interstate commerce, it is unconstitutional.
Judge Motz, dissenting:
In response to a mountain of compelling evidence that violence animated by gender bias deprives many citizens of their civil rights, substantially affects the national economy and interstate commerce, and creates a profound problem that the states had been unable to remedy, Congress enacted the Violence Against Women Act of 1994. In passing this legislation, Congress took care to identify the constitutional source of its authority, expressly finding that the regulated activity ? gender-motivated violence ? has a "substantial adverse affect on interstate commerce." Furthermore, Congress specifically limited the reach of the statute challenged here, in order to ensure that it did not interfere with any state law or regulate in any area of traditional state concern.
[W]e must keep certain principles in mind. First, the Supreme Court has directed that when a court is "asked to invalidate a statutory provision that has been approved by both Houses of Congress and signed by the President, particularly an Act of Congress that confronts a vexing national problem, it should do so only for the most compelling constitutional reasons." Mistretta v. United States, 488 U.S. 361, 384 (1989). This is "particularly" true where, as here, the legislative "judgments are based in part on empirical determinations." Board of Educ. v. Mergens, 496 U.S. 226, 251 (1990).
Second, a court faced with a challenge to an exercise of the commerce power owes even greater deference to Congress than a court asked to determine whether a federal statute violates an express prohibition of the Constitution. . . . In accordance with these principles, the Supreme Court has long held, and recently reiterated in Lopez, that the proper inquiry for a court when considering a challenge to Congress's Commerce Clause power is "whether a rational basis existed for concluding that a regulated activity sufficiently affected interstate commerce."
In contrast to the congressional silence about its basis for passing the GFSZA, Congress created a voluminous record demonstrating its reasons for enacting VAWA. . . . [W]hen Congress has made a specific finding that the regulated activity adequately affects interstate commerce, a "court must defer" to that finding if Congress had "any rational basis for such a finding." Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S.264, 276 (1981).
The Supreme Court has consistently recognized the importance of deference to Congressional findings in Commerce Clause cases and has never struck down a statute that was supported by a finding that the regulated activity had the necessary effect on commerce.
The conference [committee] report included the ultimate finding that crimes of violence motivated by gender have a substantial adverse effect on interstate commerce, by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved, in interstate commerce . . ., by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products.
H.R. Conf. Rep. No. 103-711, at 385 (emphasis added).
Congress further found that the fear of violence "takes a substantial toll on the lives of all women, in lost work, social, and even leisure opportunities." Thus, the legislature expressly recognized, as the Senate explained, that women often refuse higher paying night jobs in service/retail industries because of the fear of attack.
Congress also explicitly found that the states refused or were unable to deal effectively with the problems created by gender-based violence. The Conference Report concluded that "bias and discrimination in the [state] criminal justice system[s] often deprives victims of crimes of violence motivated by gender of equal protection of the law." Numerous reports from the state supreme courts demonstrated to the Senate "that crimes disproportionately affecting women are often treated less seriously than comparable crimes against men."
The majority does not assert that these findings lack documentation or power. Instead, it nitpicks them.
Proper application of the mandated rational basis standard of judicial review simply does not permit the result reached by the majority. . . . In light of the voluminous, persuasive record and the extensive deliberation supporting Subtitle C, my independent evaluation of Congress's "legislative judgment," Lopez, 514 U.S. at 563, compels me to conclude that Congress had a rational basis for finding that gender-based violence substantially affects interstate commerce.
Perhaps the most obvious of the majority's errors is its creation of a new rule that confines Congress's power under the Commerce Clause to either the direct regulation of economic activities or the enactment of statutes containing jurisdictional elements. This new rule depends upon a distorted view of Lopez and a cavalier disregard for the Supreme Court's other Commerce Clause precedents. Moreover, the majority's contention that this new rule justifies its holding demonstrates a serious misunderstanding of the statute before us.
In arguing that Subtitle C is unconstitutional because it does not directly regulate economic activity, the majority . . . ignores the expressly-stated purpose of the statute: "to promote . . . activities affecting interstate commerce by establishing a Federal civil rights cause of action for victims of crimes of violence motivated by gender." 42 U.S.C. § 13981(a) (emphasis added)


BLACK BRITISH supermodels Naomi Campbell and Jourdan Dunn have teamed up for the first ever fashion campaign together.
Dunn, 24, who has always cited the 44-year-old fashion icon as a role model, was given the opportunity to work with her idol as the pair paired up for Burberry's all new spring/summer 2015 campaign.
Though Campbell, has 20 years of experience over Dunn, both have been hailed as supermodels, and both have campaigned to get more black models on the fashion catwalks.
Both London-born, they were each scouted at the age of 15.
The new campaign marks Campbell's second time as the face of Burberry, the first time being in 2001 when she starred alongside friend Kate Moss, and the fourth for Dunn, who has become a "favourite" of the brand.
"Naomi and Jourdan - two great British icons, two strong, beautiful women and the two perfect faces for our new campaign. It is, as always, a real privilege to work with them," said Christopher Bailey, Burberry chief creative and CEO.
In the new campaign clip, the black models are seen posing in a range of the fashion brand's colourful coats and dresses, holding handbags bearing Burberry's distinctive plaid pattern.
The models are joined in the Mario Testino-shot, Christopher Bailey-directed campaign by British musicians George Barnett and George Le Page.
"It is always a pleasure to work with Mario Testino; we came up in the business together 28 years ago, so have an understanding and ease in working together," Naomi said in a statement.
"His photography is special and the results are always stunning. And I was thrilled to work with Jourdan Dunn for the first time - it was a lot of fun."
1. Female: Accusations, accusations, accusations!


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Competition & market abuse
Proceeds of Crime Act 2002
Section 2 & other compulsion notices
Serious fraud
Care Homes & the Care Quality Commission in the UK
Coroners Inquests
Disclosure & Barring Service Checks in the UK
Driving licence DVLA disputes in the UK
Environmental Law in the UK | Regulatory Law
Foster Care Registration Disputes in the UK
Food safety in the UK | Regulatory Law
Police Complaints Investigations Info
Licensing in the UK | Regulatory Law
Medicine & Healthcare Products Regulation
Professional Discipline in the UK
Security Industry Authority Licencing SIA in the UK
Sports Law & Testing Procedures
Taxi licensing in the UK
Trading Standards Law in the UK
Traffic Commissioner Hearings: Why Should You Care?
Health and Safety Law
Corporate Manslaughter in the UK
Health & Safety Enforcement Action in the UK
Health & Safety Fees For Intervention: What is FFI?
Appeals Against Conviction or Sentence in the UK
Arrests & Interviews Under Caution
Cyber Crime in the UK and Wider
Extradition & European Arrest Warrants
Representation & Police Station Advice in the UK
Crown Courts in the UK | Criminal Defence
Youth crime & youth courts in the UK
Funding Your Matter & Legal Aid in the UK
Adoption in the UK
Arrangements for Children
Care Proceedings
Child abduction in the UK and Wider
Children & Social Services: Care for Children
Civil Partnership Dissolution in the UK
Cohabitation in the UK | Family & Children Law
Divorce & Financial Arrangements in the UK
Pre-nuptial Agreements in the UK
Relocation of Children in the UK and Wider
Our Expert Lawyers
Lucinda Shand
Solicitor-Advocate
"Hardworking and intelligent"
-Legal 500
Lucinda is a Solicitor-Advocate who appears and advises in matters before both lower and higher Courts. She is respected for the tenacious, dedicated and determined defence of her clients and the exceptional client care she provides. As a consequence she has developed a strong and loyal following, receiving referrals from her peers, barristers and Courts.
She is instructed to advise and represent individuals at all stages of an investigation and prosecution, leading exceptional defence teams and instructing some of the country's leading Barristers.
Representing individuals based in the UK and internationally she has particular experience in cases involving international arrest warrants and Letters of Requests for the disclosure of overseas information. Renowned for her thorough preparation of cases, she has established a particular reputation for the representation of clients involved in allegations of fraud and serious crime and is particularly recommended for this area of work in The Legal 500.
Throughout her career Lucinda has defended in cases brought by a variety of organisations including the Crown Prosecution Service, Financial Conduct Authority, Trading Standards, Serious Fraud Office, Department for Business Innovation and Skills, HM Revenue and Customs, Council Authorities, UK Boarder Force and the Iraq Historic Allegations Team.
Her experience includes defending in a wide variety of criminal offences including the following:
Serious Fraud and money laundering offences
Serious violent offences including murder
Sexual offences including complex historic allegations
Weapon offences
Immigration offences
Trademark and counterfeit goods offences
Traffic Act offences
What the directories say
Rising Star, Legal 500, 2020
"Enthusiastic, empathetic with clients, very well prepared" – Legal 500, 2020
"Hardworking and intelligent" – Legal 500, 2017
R v DY (Operation Perhaps) – Represented an Accountant charged with a multi-million pound conspiracy to commit fraud. Defendant was the only one out of twelve defendant's to be acquitted. Other defendants received sentences totaling 52 years.
R v CS (Operation Tidworth) – investigation and prosecution conducted by the Financial Conduct Authority. Defendant is one of six charged with fraud and FSMA offences relating to the alleged fraudulent sale of shares in an overseas property development company totaling £2.8million.
R v TR (Operation Stagecoach) – defendant is alleged to be the 'controlling mind' in the running of a fraudulent company selling investments in rare earth metals. Alleged value of the fraud totals £7 million.
R v CS (Operation Wintergreen) – representing defendant charged with conspiracy to defraud in the alleged selling of investments in carbon credits totally £1.5million.
R v W – representing an individual involved in the alleged bribery and corruption of Government Officials in the Turks and Caicos Islands. Investigation and prosecution initiated by the Special Investigation and Prosecution Team, specifically set up by UK Government following the recommendation in Sir Robin Auld's Commission of Inquiry 2008-2009.
R v Stilwell [2016] EWCA Crim 1375 – Reported case in which Lucinda represented the Appellant. Case provides important reference and clarification to the appropriate starting point for sentences passed in respect of specific sexual offences. Appellants' sentence was significantly reduced.
R v JH – Cold case review, three years after conviction for a number of historic sexual offences spanning a number of years. Represented the Appellant during appeal in which all convictions were quashed. Thereafter, successfully secured bail pending retrial and represented him during two retrials in which he was finally acquitted of all counts and his good character restored.
Appeal of Goldie Coats – Represented the Appellant following referral from the Criminal Cases Review Commission. Although the particular circumstances of this appeal did not result in the conviction being quashed, this case secured the recognition of "battered women's syndrome" in cases of drugs importation
Read the Guardian report here
Read the Judgment here
R v DM – defendant was the owner of a chain of shops throughout the country. He was charged, following a lengthy Police investigation, with the supply of illegal drugs said to have been contained in so called 'legal highs' prior to the enactment of The Psychoactive Substances Act 2016. Successfully challenged the prosecution prior to trial, resulting in the discontinuance of proceedings.
R v CC (Operation Hermes) – Represented one of seven defendants accused of conspiracy to rob. Particularly complex case, involving a series of violent robberies in peoples homes and substantial cell site evidence.
R v JF (Operation Jambles) – Represented a vulnerable youth charged with manslaughter and arson. Case involved the instruction of psychologists to consider the aspect of foreseeability and an intermediary during trial. Successfully appealed sentence before the Court of Appeal.
R v VT (Operation Jabrun) – Represented one of three defendants charged with manslaughter and perverting the course of justice. Partially complex legal arguments advanced concerning the elements of 'manslaughter by flight' and undertook the multiple instruction of experts in blood splatter, DNA and video enhancement. Successfully challenged conviction before the Court of Appeal.
Member of the Female Fraud Forum
Member of the Young Fraud Lawyers Association
lucinda.shand@blackfords.com
Blackfords LLP
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Home > Browse SCDL Collections > Browse All Collections > Women
Mills Family of Greenville
Collection of letters and photograph from the Mills Family of Greenville. Most letters and photographs date between 1900-1930s.
Furman University Senior Order Scrapbooks
The Furman University Senior Order is an elite leadership honor society for female students. It was founded in 1937 and the group taps rising senior women each spring for the honor. These Furman scrapbooks span from 1962-1969
UDC Applications (1913-1929)
Membership applications of the Benjamin Brockman and Hampton Lee chapters of the United Daughters of the Confederacy ranging from 1913-1929. Members lived in the greater Greer area. Applications contain genealogy details of date of birth and family relationships.
View Partner Collection Homepage
Berkeley County (S.C.) Memories – Mary Palmer's Composition Book
A descendent of French Huguenot, Isaac Mazyck, who settled in South Carolina in 1686, Mary Louisa Palmer (daughter of Henry Milner Palmer and Julia Palmer) was born near Eutawville, South Carolina on August 2, 1874. It is unknown where Miss Palmer attended school. Her grandson, Keith Gourdin of Pineville, S. C. has the copy book in his collection. …
Gussie Johnson Papers, 1940-2000
After growing up very poor on a farm as the fifth of eight children, Gussie Kennerly Johnson (1915-2000) defied the odds: she got a college degree and served as an officer in the U.S. Army during World War II as a member of the Women's Army Corps (WACs). After the Pearl Harbor attacks on December …
Local Television Newsfilm Collections
The Local Television News Collections at Moving Image Research Collections (MIRC) comprise approximately 1.5 million feet of 16mm motion picture film outtakes dating from the late 1950s to the early 1980s, donated by several South Carolina television stations. These outtakes document over two decades of local people and events, as well as reportage surrounding significant …
Fox Movietone News Collection
The collection contains seven million feet of nitrate motion picture film and four million feet of safety motion picture film documenting the national and global politics and culture from 1919 through 1934 and from September 1942 through August 1944. Paper holdings provide detailed notes generated by original camera crews as well as ephemera related to …
Shadows of the Gullah Geechee
The South Carolina State Library hosted documentary photographer Pete Marovich's "Shadows of the Gullah Geechee" photo exhibit from February 2 to March 30, 2018. The work explores the lives and culture of the Gullah Geechee people in communities from Hog Hammock on Sapelo Island, Ga., to Mosquito Beach on Sol Legare Island, S.C. The project …
Center for Women's and Gender Studies 20th Anniversary Poster Collection
Established at USC Spartanburg in October 1998, the Center for Women's and Gender Studies (CWGS) is housed in the College of Arts and Sciences and serves students, faculty, staff and community members through curricular and co-curricular programming. As part of the USC Upstate commitment to recognizing and supporting diversity efforts on campus, the Center for …
A collection of 19th and early 20th century diaries written by the following women: Caroline Crane Marsh, Elizabeth Waties Allston Pringle, Cloe Tyler Whittle Greene, and Grace (Gay) Latimer Whittle Sams.


Here are a few stories about Elaine Marcucio & New England Young at Heart.
September 2018 - Falling into routine and cooler weather...AND FALL BALL Last Call!
April 2018 -Senior Prom, Spring Tips, and MORE events!!!
March 2018 - Spring is SPRINGING...and you won't want to miss these events!!!
February 2018 - Love is in the air...and many events and info that you won't want to miss!
January 2018 - Happy New Year - Time to start planning ahead!


In a salute to the Vancouver Canucks of 1970 – our long-awaited National Hockey League expansion franchise – the Hard Rock Casino Vancouver is proud to host a free public autograph session of legendary Canucks players on Monday, May 19 at 2 p.m.
This event will kick-off the 17th annual Vancouver Canucks Alumni Charity Golf Classic at Northview Golf & Country Club on Tuesday, May 20.
Vancouver Canucks pioneers including original team captain Orland Kurtenbach, former Montreal Canadiens stalwart goaltender Charlie Hodge, 34-goal scorer Rosaire Paiement and first-ever NHL Entry Draft pick Dale Tallon will all be on hand at the Hard Rock Casino Vancouver for a meet-and-greet with Vancouver hockey fans.
In addition to the celebrated cast of 1970 players, other Canucks Alumni members Kirk McLean, Cesare Maniago, Bobby Schmautz, Andre (Super Pest) Boudrias and the most recent member of the Canucks Ring of Honour Pat Quinn will be on hand to celebrate this special gathering of Vancouver's hockey elite.
The autograph session will be from 2:00 p.m. to 5:00 p.m. at the Asylum Sound Stage, followed by free performances by the Canadian alternative rock band, Odds, and noted Canadian singer-songwriter, Dallas Smith.


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News Center > Entergy Corporation Board Elects Lisa Hyland as Board Member
Entergy Corporation Board Elects Lisa Hyland as Board Member
Neal Kirby (Media)|504-576-4238|nkirby@entergy.com
David Borde (Investor Relations)|504-576-5668|dborde@entergy.com
Elise "Lisa" Hyland
NEW ORLEANS – Entergy Corporation's board of directors today announced the appointment of Elise "Lisa" Hyland, former senior vice president, special projects of EQT Corporation, as a new board member, effective March 4, 2019.
EQT Corp., together with its subsidiaries, operates as an integrated energy company headquartered in Pittsburgh. Hyland held several management roles during her 18-year career with the company.
"Lisa Hyland brings more than 35 years of combined operations and business leadership experience," said Leo Denault, Entergy Corporation's chairman of the board and CEO. "Her insight and expertise will further strengthen our board as We Power Life and build the utility of the future for our customers and communities."
During her tenure with EQT Corp., Hyland was accountable for EQT's midstream engineering and construction operations and vital to the company's organic infrastructure projects. She previously held the position of senior vice president, EQT Corp. and president, Midstream; as well as senior vice president and chief operating officer for the general partner of EQT Midstream Partners, LP. She also served as president of Equitable Gas Company, a local distribution company previously owned by EQT, and as executive vice president, midstream & mountain valley pipeline operations for EQT's Midstream business unit.
Prior to EQT, Hyland held various engineering and management positions during her 19-year tenure at Alcoa Inc. Having also spent time in corporate research and technology leadership roles, she holds five U.S. patents in the field of materials design.
She also serves on the board of directors of Marathon Oil Corp. and is an emeritus board member for Manchester Bidwell Corporation.
Hyland earned a Master of Business Administration from the Tepper School and holds a master's and a bachelor's degree in metallurgical engineering from Carnegie Mellon University.
About Entergy Corporation
Entergy Corporation (NYSE: ETR) is an integrated energy company engaged primarily in electric power production and retail distribution operations. Entergy owns and operates power plants with approximately 30,000 megawatts of electric generating capacity, including nearly 9,000 megawatts of nuclear power. Entergy delivers electricity to 2.9 million utility customers in Arkansas, Louisiana, Mississippi and Texas. Entergy has annual revenues of approximately $11 billion and more than 13,000 employees.
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Twitter: @entergy
Corporate Investor Relations
Entergy Recommends Shareholders Do Not Tender in Response to Mini-Tender Offer by TRC Capital Corp.
Entergy Reports First Quarter Earnings
Entergy Announces First Quarter Earnings Conference Call


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Austin 8 military tourer
Clip Art made buy Guy from Belgium especialy for the Austin Eight Register
Published with thanks to and permission of the Tilly Register.
By John Simpson http://8tourer.tillyregister.com/
At the outbreak of the Second World War, all types of British military vehicles were in short supply. Many private and commercial vehicles had to be impressed into military service. In fact, in the first year of the war there were more impressed vehicles in military service than customdesigned examples.
Ladies of the 1st Polish Corps stand ready by their Austin Tourers and Tillys (from a volume of Od Acromy od Zwyciezcy).
od Zwyciezcy).
Austin Tourers and Tillys (from a volume of Od Acromy
The first phase of customising vehicles was to adapt civilian and commercial designs for military use. Along with the four light utilities from Austin, Hillman, Morris and Standard, the Austin 8 Tourer was an early example of this practice, although in the latter case the adaptations were few.
The Austin Seven open tourer was acquired by the British Army in small batches throughout the 1930s. Based on the overall success of the seventeen-year history of the Austin Seven, the pioneer of this classic
design, Lord (Herbert) Austin announced the launch of its successor, the Austin Eight in February 1939. Leonard Lord had been brought in as works manager from rivals Morris to turn around Austin's fortunes and take charge of this and other new model launches.
The Eight was to be produced as a two- and four-door saloon, tourer and light van. At the opening of the Berlin Motor Show on 17 February 1939, the Austin stand was minus any example of the Eight. The visiting German Chancellor, one Adolf Hitler, viewed the Austin stand and asked, "what have you done with the Seven?" Hitler's first car had apparently been an early example of the Austin Seven. On the release date for the Eight, 24 February, three examples were placed on display.
The Tourer was produced in two-seat and four-seat configurations, costing £132.10s and £135, respectively. As early as April 1939, the first contract for the Military Tourer was made, albeit only for a single vehicle. Interestingly this contract, DDS 1238, was not just for a single Austin, but also an equivalent from Morris. The purchase price for the Austin was for £132.10s and its recipient was for the commanding officer of MEE. Our sources tell us this may have been the Mechanisation Experimental Establishment in Australia.
Once WD contracts were placed for multiple vehicles, the purchase price dropped. Contract V3621shows this figure to be £122. The first proper contract was dated 16 September 1939 and identified as V3621 for 2,800 vehicles. Five further contracts followed concluding with V3996 for 148 vehicles, dated 19 June 1940. See separate panel on the next page for WD contracts in full. No further tourers would be produced for the civilian sector either, despite the saloon going back into production after the war.
example of an Austin 8AP Tourer
Therefore, even before the Battle of Britain commenced, the Military Tourer was no longer being made. Around 9,500 cars were produced for light communication and liaison work (the exact number varies from source to source). In most cases, they were supplied to the Royal Army Service
Corps. The other initial recipient was the Royal Army Ordnance Corps. The cars were usually driven in convoy by ATS ladies from the Longbridge factory directly to their units or, if not needed urgently, to RASC Receiving Depots or RAOC Vehicle Reserve Depots. Amongst many vehicle ypes delivered by ATS drivers, and other army circles, the Tourers tended to be disrespectfully referred to as 'fleas'. Once received, the ATS would be responsible for all aspects of vehicle maintenance and preparation prior to being delivered to their receiving units. This could also include painting in camouflage and markings. We have little detail on record of those receiving units. We do know that all manner of recipients would have been allocated them as diverse as the 2 I/C of 117th Field Regiment of the Royal Artillery, the 1st Battalion of the Northumberland Fusiliers, and the Home Guard. In the latter case, the Home Guard would have received the Eight in the mid- to late-war years owing to, by then, its perceived obsolescence.
The Austin 8AP Tourer
The Home Guard was well accustomed to using older and experimental equipment rejected by the regular army. We also know from photographs that the Tourer served in North Africa and in Malta painted in the distinctive stone wall camouflage. Strangely, we seem to know more about the Tourer in captured use thanks to several photographs of German units at the wheel, presumably captured in France and Belgium including the withdrawal from Dunkirk. These included the 227th Infantry Division, 162nd Infantry Regiment of the 61st Infantry Division, 1st Panzer Division, Engineer Battalion 18 and the Luftwaffe. One such example with snow chains on its rear wheels suggests it might have served on the Eastern Front according to the photograph caption. By comparison, the Tilly Register archive has relatively few confirmed photographs of the four light utilities in enemy hands, although they certainly were used as such.
Austin 8AP Tourer in German hands Austin 8AP Tourer in German hands
Photo was published with permission of Tangograd Publishing Austin 8AP Tourer in German hands
Photo was published with permission of Tangograd Publishing
Austin 8AP Tourer in German hands
The above three images are published in the book: British Military Trucks in Wehrmacht Service by Jochen Vollert and were published on this web page with permission of Tangograd Publishing. Below the front cover of the book and a direct link to the publisher.
The Military Tourer differed in subtle ways to its civilian cousin. The fold-down windscreen was, however, present on both civilian and military variants. The most notable change for the Military Tourer were the engine compartment side vents. There were two vertical gill-like vents on the 8AP
(the Austin Tilly had three similar vents), whilst a horizontal trim was present on the civilian version. Other military features included the khaki canvas hood in place of the black 'leatherette' civilian version. All Military Tourers were two-seaters, utilising the rear luggage carrying space to better effect. Those of you that have seen the classic Dad's Army episode 'The Making of Private Pike', will remember this was clearly a four-seat example. This particular vehicle is a genuine military one, obviously given its rear seat after entering civilian life. The same vehicle appeared in The Eagle Has Landed. The larger civilian headlamps were retained, like the early Austin Tillys.
Sidelights or headlights were embossed with WD markings on the chrome bezel.
Notably, unlike the four Tillys, the Austin 8AP's electrics are 6-volt. As with the Tilly, but more so, the Jeep took over the Tourer's duties as they became available. After military service, many Tourers were offered to invalided ex-army personnel re-entering civilian life. One example was EVJ 111, today owned by Keith Monk from Shropshire, but previously in the private ownership of a retired Major Hooper from Leominster. Similarly MHX 284, recently owned by John Guppy and now in the hands of Brent Hamer from Holland, was once owned by an ex-army Captain, Alan Sanders, who bought the vehicle at a disposal sale in 1946. So emotionally
attached to it even after selling the vehicle on, Captain Sanders' family tracked the vehicle down through the DVLA. He died soon after, happy that his former little car was being well looked after. There are around thirty known survivors of the military version, in the UK, Europe and one in Egypt. They are relatively well represented in museums in England.
Strangely enough, most are housed in East Anglian sites. The Dad's Army example KHT 568 is currently to be seen at The Dad's Army Collection within the Bressingham Steam Museum, but is owned by Roger Miles of Warwickshire, and the East Anglia Transport Museum at Carlton Colville houses MMX 979 in civilian guise. Outside the region, Tony Oliver's History on Wheels Museum at Eton Wick has MFC 664 on display.
Above Austin Eight Tourer is an 'out-take' from the set of the BBC TV Show
"Dads Army c.1977" - Clive Dunn holding the umbrella.
Austin Eight military saloon cars
For a long period of time it was unclear if the Austin 8 saloons were used being army cars during WWII. In 2016 I acquired below January 1940 spare parts booklet, where on the cover, the book is referring to Austin 8 Saloon Cars impressed by the war department.
List of spare parts booklet military saloon cars
In the booklet a treasure is published. It is mentioned that an amount of 1127 two door four light saloons type ARA and 758 four door six light saloons type AR are delivered to the war department. The booklet contains all chassis numbers of the in total 1.885 cars together with the equivalent engine numbers. The chassis mentioned start with 16.236 up to 24.079, only a few mentioned have a lower chassis number. If you wish to know if your car was a military saloon. Please feel free to contact the Austin Eight Register and I will check for you.
As far as I can see at first sight the cars are manufactured same as the civilian models. Open wheels, standard hub cabs, standard pre-war air filters, same side bonnet panels etc. I have not found any specific parts for the war department cars onther than the ignition switch does not contain an ignition key.
From now we are sure that 1885 Austin 8 saloons were delivered to the war department and we even know which chassis numbers and which equivalent engines were part of it. What a find !!!!! The booklet is treasured in the Austin 8 register archives.
War time military Austin Eight two door, four light saloon type ARA
Austin 8 AP military hand books and manuals
There were specific manuals printed for the Austin 8AP military tourers.
Austin 8AP military tourer hand book
Austin 8AP military tourer parts list
Austin 8 military saloons list of spare parts
Austin 8AP WD contracts
1 Contract DDS 1238 of 19/4/39. One Austin and one Morris Tourer for
MEE. Price for Austin £132.10s. WD numbers M3912449 (Austin),
3912450 (Morris). Understood to be trials vehicles.
2 Contract number unknown, of 3/9/39. Two Austins purchased in Columbo,
Ceylon (now Sri Lanka). M4481760–4481770
3 Contract 294/V3621 of 16/9/39. 2,800 vehicles – 1,400 for ROAC @ £122 ex-works. 1,400 for RASC. The first half of the contract seems
to have all been fulfilled and allocated M140001–4101400, but the second figure should possibly read 1401400. (The REME Museum quotes this series as M4100001– 4101400.) The second half has 1,386 numbers allocated, but 311 of these may have been cancelled.
4 Contract 294A/502 of 14/10/39. 80 vehicles for RASC. M3918191–3918270. Chassis number sequence AP21875–25167 from spares
5 Contract V3744 of 29/11/39. 1,840 vehicles for RASC. WD number sequences are fragmented and could total 2,025 vehicles in all. A typical batch runs from M212008 – 212841. Chassis number sequence AP
31914–37806 from spares book. Not every chassis number in this sequence (5893 vehicles) is present, and lines up with the 1,840 from the WD contract.
6 Contract V3794 of 1/02/40. 1,200 vehicles for RASC. Again fragmented WD batch numbers, typical being M190977–191630. These numbers allocated. Total 1,018 vehicles. Contemporary spares book lists complete
range of 1,200 chassis numbers from AP36373-40181.
7 Contract V3927 of 25/5/40. 3,467 vehicles for RASC @ £126.10s
ex-works to Olympia. Again fragmented batches totalling 3,113 vehicles, typical being M221432–222041.
8 Contract V3996 of 19/6/40. 148 vehicles for RASC. M1135165–1135312
Austin 8 Register key ring 30mm


text:
Vinul alb este un tip de vin obținut din varietăți de struguri mai deschise la culoare. Culoarea sa poate varia de la galben la galben-verzui sau galben-auriu.

Note

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