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The Best Location Standard and PUC Review of Proposed Transmission Line Routes: In Re Bangor Hydro-Electric
Get PDFForty-five years after the enactment of legislation delegating eminent domain authority to electric power companies, the Maine Supreme Judicial Court had its first opportunity in In re Bangor Hydro-Electric Co. to construe the statute\u27s grant of review authority to the Public Utilities Commission (PUC). Rejecting the arbitrary and capricious review standard previously applied by the PUC, the court held that the statute required the Commission to determine whether the utility\u27s chosen location best serves the public interest. Under the former standard, the utility had been required to present only minimal evidence in support of its choice of location in order to obtain PUC approval. But the new standard established in Bangor Hydro-Electric compels the utility to present far more evidence in support of its choice, and also requires the PUC to evaluate that evidence to ensure that the site selected is the best location in the public interest. This Note suggests that the court should have retained the arbitrary and capricious standard, but increased its effectiveness by raising the quantum of evidence on the existence and character of alternative routes that the utility must produce in order to meet its burden of going forward
Subchapter S and Selected Problems in Close Corporation Planning
Get PDFThe basic scheme of Subchapter S has already been thoroughly explained and discussed, and there is an extensive literature dealing with particular Subchapter S problems. It is the purpose of this article to focus on recent litigation in three especially troublesome areas, where the actual requirements or effects of a Subchapter S election necessitate foresight and careful planning to enable the shareholders of an electing corporation to obtain the maximum tax advantage. These areas are corporate distributions, the net operating loss passthrough, and the single class of stock rule
Argersinger and the Right to Counsel in the Military
Get PDFThe dramatic advances made since 1965 in recognizing the right to counsel for accused indigents have steadily, albeit unevenly, extended to military courts-martial. Despite this progress, many questions remain unresolved regarding right to counsel both generally and in the military. While the right to counsel is solidified in general courts-martial, it remains precarious in special and summary courts-martial, for the right to lawyer counsel is defeasible where a military exigency is shown in the former and lawyer counsel is not yet required service-wide in the latter. The military exigency exception to full sixth amendment rights to easily degenerates into a catchall which allows officials to deny lawyer counsel for a multitude of reasons which sound more like inconvenience than true exigency. A recent United States district court opinion cleared away some of the confusion by holding that lawyer counsel must be made available to all defendants in summary courts-martial. Of equal importance was the same court\u27s restrictive view of the military exigency exception. By holding that only the most extreme military operative reasons may be offered for use of nonlawyers at summary trials, the court showed a new willingness to police the unfettered discretion of commanders in deciding whether or not law-trained counsel are available
Constitutional Issues in Durational Party Affiliation Requirements
Get PDFThe recent decision of the Supreme Court declaring durational residency requirements for voting in general elections unconstitutional has raised the analogous question of the constitutionality of state-imposed durational party affiliation requirements for voting in primary elections. These requirements base a voter\u27s eligibility to participate in a primary not solely on his affiliation with the party, but also on the additional requirement that the party affiliation has extended over a period prior to the primary. This additional requirement has recently been successfully attacked in several states as violative of the First and Fourteenth Amendments to the Constitution. However, New York\u27s statutory system which requires a primary voter to have enrolled for the primary and to have stated his affiliation prior to the general election preceding the primary in which he wishes to vote, has been upheld in part by the Second Circuit in Rosario v. Rockefeller. The statute there was held to be minimally infringing on First and Fourteenth amendment rights, while it effectively furthered the state\u27s compelling interest in preventing raiding, and thus protected political parties from fraudulent candidacies. Voting and free association for the advancement of political beliefs have been given strong constitutional protection under the First and Fourteenth amendments, and have been characterized as fundamental rights. The Supreme Court has repeatedly reaffirmed that such rights cannot be restricted unless the purpose of the restriction and the assertedly overriding interests served by it [have met and passed] close constitutional scrutiny. Thus, the test of any statute granting the franchise to residents on a selective basis has been measured by the doctrine of compelling state interest, which was the standard applied in Rosario in upholding the constitutionality of the durational party affiliation statute
Lloyd Corp. v. Tanner: A Shopping Center Open for Business but not for Dissent
Get PDFSelf-government in the United States is facilitated by adherence to the traditional principles of freedom of speech and private property. The first requirement of a self-governing community is an electorate with sufficient knowledge to regulate its own affairs wisely. Hopefully, that requirement is fulfilled by free interchange of ideas. But the viability of free speech depends in part on the concept of private property, which secures to the individual an area of insulation from societal influences. Both free speech and private property are constitutionally protected from governmental interference, the former by the First Amendment and the latter by the Fifth Amendment. Furthermore, comprehensive case law has carefully directed the application of the protections stated in the amendments. However, where there is a conflict between free speech and private property, coupled with only an indirect governmental influence, the situation is more problematic. When the Supreme Court granted certiorari to hear Lloyd Corp. v. Tanner, it undertook to clarify the relationship between free speech and private property. This note attempts to isolate and define the constitutional doctrine the Court began to develop in that case. It is the author\u27s thesis that the emerging constitutional doctrine circumscribes private property with first amendment limitations whenever the property functions as an essential community forum
Search and Seizure
Get PDFSearch and Seizure, authored by Colorado Judge Edward C. Fisher, is a book of better than 300 pages which purports to be a recent survey of the law dedicated to peace officers of America. The foreword states that it is written for law enforcement officers and is a ready reference for attorneys, judges, and others concerned with the administration of criminal justice. The book is clearly written. It tells police officers how to conduct searches and seizures and it tells them why restrictions are imposed. Where there is still conflict and doubt, it gives the officer some safe approaches to take until more exact procedure is decided upon
Law of Rebuttable Presumptions in Maine
Get PDFIn Hinds v. John Hancock Mut. Life Ins. Co., the Maine Supreme Judicial Court sought to clarify and simplify the law of rebuttable presumptions as to the quantum of evidence that must be introduced before a presumption is dispelled. The Maine court adopted a rule which states that a presumption is rebutted when the probability of the nonexistence of the presumed fact is as probable as its existence. Stated another way, a presumption is rebutted when the jurors\u27 minds are placed in equilibrium. Ten years later, in State v. O\u27Clair, the court expressly incorporated the Hinds rule into criminal procedure. In the O\u27Clair decision, the court also held by way of dicta that when the defendant asserts an affirmative defense, he has the burden of persuasion as to the nonexistence of a presumed fact, regardless of whether the affirmative defense constitutes rebuttal evidence to a presumption. The equilibrium standard utilized in the Hinds decision did little to alleviate confusion surrounding presumptions and is inappropriate for application in both civil and criminal cases. The standard breeds ambiguity in jury instructions with the consequent infringement upon a defendant\u27s right to a fair trial by jury in criminal proceedings and, in effect, shifts the burden of persuasion to the accused. Furthermore, the equilibrium standard and the affirmative defense corollary are a serious challenge to the presumption of innocence and the reasonable doubt requirement embodied in the due process clause of the fourteenth amendment. In civil cases, the standard does not best serve the interests of all litigants because of an unfair allocation of the burden of persuasion. Different policy and constitutional considerations in civil and criminal cases warrant a dual standard for each proceeding as to the quantum of evidence necessary to rebut a presumption
Effectuating the Purposes of Chapter XIII of the Bankruptcy Act
Get PDFThe United States Congress is presently considering a bill sponsored by the National Bankruptcy Conference. This proposal would alter certain sections of chapter XIII of the Bankruptcy Act. Included in the proposed general revision are major changes in two provisions central to the operation of the statute. These provisions, contained in sections 6524 and 614, were originally intended as the mechanisms with which bankruptcy courts were to resolve the basic conflict between the overall purposes of chapter XIII and the rights of secured creditors. As recently as 1969, in Terry v. Colonial Stores Employee\u27s Credit Union of Atlanta, a court affirmed the view that a referee could not confirm a plan over the objection of a secured creditor when the plan proposed monthly payments less than those called for by the contract. The referee was also held to have abused his powers under section 614 by denying a reclamation petition submitted by the secured creditor. The Conference bill rejects the approach taken by Terry, and by the majority of courts, toward the powers of a bankruptcy court. The new legislation eliminates the language of section 652(1), which has led to the majority interpretation, and substitutes a substantially more flexible standard for courts to follow when considering the rights of secured creditors. This flexibility is also expressly incorporated into section 614. In fact, the bill takes an approach to the implementation of the purposes of chapter XIII which is more liberal than that taken by cases not followed by Terry. One of those cases, Cheetham v. Universal C.I.T. Credit Corp., is particularly suitable as a vehicle for describing the operation of chapter XIII in its unamended form, and for analyzing the problems sought to be remedied by the Conference bill. Following an analysis of Cheetham, this note will examine the bill in light of the purposes of chapter XIII. Of immediate concern are the rights of secured creditors under chapter XIII, but a question that must also be answered is whether the Conference bill adequately advances the purposes of chapter XIII