Archive for category Constitutional Law and Civil Rights

Thomas Sowell discusses his new book, “Intellectuals and Race”


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Rite Aid Ransacking In Brooklyn and Gauleiter Bloomberg installs new soda troika


Bloomberg vows to fight reversal of NYC soda ban   Washington Times

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Read the text here

DRUDGE REPORT 2013®

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Text of Court’s Decision to Halt Soda Ban


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Amicus plea: Don’t rule on DOMA now : SCOTUSblog


Amicus Brief (Harvard)

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Redistribution of wealth and the Great Depression [with no NBC gauleiter revisionism]


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Unambiguous contract of employment language that is inconsistent with the employer’s policy nevertheless controls


Unambiguous contract of employment language that is inconsistent with the employer’s policy nevertheless controls

Unambiguous contract of employment language that is inconsistent with the employer’s policy nevertheless controls

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Unambiguous contract of employment language that is inconsistent with the employer’s policy nevertheless controls Chatelle v North Country Community Coll, 2012 NY Slip Op 08215, Appellate Division, Third Department

When North Country Community College hired Shane Chatelle as its Facilities and Special Projects Manager in 2004, the College’s President provided Chatelle with a letter setting forth his salary and enclosing a copy of the resolution of its Board of Trustees approving the appointment together with a written statement of the Board’s “management confidential”* staff policy “purporting to provide,” that among other benefits, that Chatelle would be compensated for up to 180 days of accumulated sick leave upon his severance from employment.

In 2011, Chatelle resigned from his position and requested compensation for his accumulated sick leave. The College, claiming that, despite the statement provided to him upon his appointment, its actual policy authorized compensation for accrued sick leave only upon retirement.

Chatelle sued, contending breach of contract, among other things. Supreme Court granted Chatelle’s motion in part, awarding him $44,114.96 in damages for breach of contract but dismissed his remaining claims. Chatelle and the College “cross appealed” the Supreme Court’s ruling.

The Appellate Division said that the written statement provided to Chatelle upon his employment indicated that he was entitled to “the benefits given by the existing [m]aster [a]greements except where modified or defined by the following [benefits].”

With regard to the sick leave benefit, the statement provided that Chatelle was entitled to 30 sick days per year, cumulative to 180 days and “[a]t [the] time of severance sick leave will be compensated.”

Although the College, relying on extrinsic evidence, argued that the statement given to Chatelle was in error and that the Board had intended to adopt a policy that only compensated for sick leave at retirement, the Appellate Division said that had “no reason to consider this [extrinsic]

evidence because the statement’s language is clear and unambiguous.”

Accordingly, said the court, the College is bound by the terms of the writing provided to Chatelle as part of his employment contract “and may not rely on its unilateral mistake to void the agreement,” explaining that the text of the statement is clear and Chatelle does not rely on past practice nor claim “estoppel to enforce his contractual right.”

The Appellate Division, however, modified Supreme Court’s judgment granting Chatelle $44,114.96 as payment for his unliquidated sick leave accruals by reducing the award to $4,770, “representing [Chatelle ‘s] 159 accrued sick days at $30 per day.”

  • Presumably Chatelle was designated “managerial” or “confidential” within the meaning of §201.7 of the Civil Service Law [The Taylor Law] upon his appointment.

Unambiguous contract of employment language that is inconsistent with the employer’s policy nevertheless controls Chatelle v North Country Community Coll, 2012 NY Slip Op 08215, Appellate Division, Third Department

When North Country Community College hired Shane Chatelle as its Facilities and Special Projects Manager in 2004, the College’s President provided Chatelle with a letter setting forth his salary and enclosing a copy of the resolution of its Board of Trustees approving the appointment together with a written statement of the Board’s “management confidential”* staff policy “purporting to provide,” that among other benefits, that Chatelle would be compensated for up to 180 days of accumulated sick leave upon his severance from employment.

In 2011, Chatelle resigned from his position and requested compensation for his accumulated sick leave. The College, claiming that, despite the statement provided to him upon his appointment, its real policy authorized compensation for accrued sick leave only upon retirement.

Chatelle sued, contending breach of contract, among other things. Supreme Court granted Chatelle’s motion in part, awarding him $44,114.96 in damages for breach of contract but dismissed his remaining claims. Chatelle and the College “cross appealed” the Supreme Court’s ruling.

The Appellate Division said that the written statement provided to Chatelle upon his employment indicated that he was entitled to “the benefits afforded by the existing [m]aster [a]greements except where modified or defined by the following [benefits].”

U.S. Supreme Court building.

U.S. Supreme Court building. (Photo credit: Wikipedia)

With regard to the sick leave benefit, the statement provided that Chatelle was entitled to 30 sick days per year, cumulative to 180 days and “[a]t [the] time of severance sick leave will be compensated.”

Although the College, relying on extrinsic evidence, argued that the statement given to Chatelle was in error and that the Board had intended to adopt a policy that only compensated for sick leave at retirement, the Appellate Division said that had “no reason to consider this [extrinsic]

evidence because the statement’s language is clear and unambiguous.”

Accordingly, said the court, the College is bound by the terms of the writing provided to Chatelle as part of his employment contract “and may not rely on its unilateral mistake to void the agreement,” explaining that the text of the statement is clear and Chatelle does not rely on past practice nor claim “estoppel to enforce his contractual right.”

The Appellate Division, however, modified Supreme Court’s judgment granting Chatelle $44,114.96 as payment for his unliquidated sick leave accruals by reducing the award to $4,770, “representing [Chatelle ‘s] 159 accrued sick days at $30 per day.”

  • Presumably Chatelle was designated “managerial” or “confidential” within the meaning of §201.7 of the Civil Service Law [The Taylor Law] upon his appointment.

The decision is posted on the Internet

 

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HOUSE MEASURE LAUNCHES NEW IMMIGRATION DEBATE


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HOUSE MEASURE LAUNCHES NEW IMMIGRATION DEBATE

Wall Street Journal Abstracts November 28, 2012 Wednesday

November 29, 2012, 1:30 AM — by Wall Street Journal Abstracts

ABSTRACT

Democrats seeking broad immigration reform may not support more-narrowly targeted bill that would expand visas for students with postgraduate or doctoral degrees to stay in US, easy labor shortage for high-tech and engineering firms (M)

Copyright 2012 The New York Times Company: Abstracts
All Rights Reserved
LexisNexis Terms and Conditions
Newstex ID: LNLEG-113380-13541706372956428200
———/-

Retiring GOP senators introduce bill to give legal status to children of illegal immigrants@ Gannett News Service November 27, 2012 Tuesday
Filed under: Immigration Law November 28, 2012, 6:55 PM — by Gannett News Service

By ERIN KELLY, Gannett Washington Bureau

WASHINGTON – Arizona Sen. Jon Kyl and Texas Sen. Kay Bailey Hutchison introduced legislation Tuesday to give legal status to young immigrants brought to the United States illegally as children.

The bill by the two Southwest Republicans – and Sen. John McCain, R-Ariz. – would offer special student and work visas and ultimately permanent legal status to those who earn a college degree or serve four years in the military.

“We need to have a discussion that is sensible, that is calm,” said Kyl, who, like Hutchison, is retiring in January. “This particular piece of immigration reform seemed a logical place to begin.”

Unlike several previous “Dream Act”-@style bills, it does not offer a special pathway to citizenship, a conscious omission that is likely to be opposed by immigrant rights' groups and many Democrats.

“I think this is a doubled-edged sword,” said Mary Giovagnoli, director of the Immigration Policy Center, which advocates for immigrants' rights. “On one hand, I think it's great that people are putting ideas out there about how to go forward on immigration. At the same time, I think it's really unfortunate that the choice is being made to put solutions out there that don't include the opportunity for people to become citizens.”

The issue is especially important to Latino voters, who overwhelmingly supported President Barack Obama and Democratic congressional candidates in the November election.

The young immigrants who came to the United States as children are considered the most sympathetic group of illegal immigrants to many Americans, polls have shown. Congress has considered legislation for more than a decade that would allow the immigrants to stay legally in the United States. A bill passed the House in 2010 but died in the Senate.

Kyl said he doubts the Senate will take up the bill in the lame duck session. But he and Hutchison have been working on the plan for about a year and wanted to get the discussion started before they left. They said they believe Sen. Marco Rubio, R-Fla., and others will take up the cause next year.

Hutchison said she believes that offering relief to the young immigrants should not have to wait until Congress can pass a sweeping immigration reform bill.

“This is a time-sensitive issue,” Hutchison said at a Capitol press conference with Kyl. “They (the young immigrants) want to go to college and be a part of our system.”

The bill, which the senators named the “Achieve Act,” offers young unauthorized immigrants a chance to earn their way through a three-step visa system that ends with permanent legal status.

To be eligible to apply, immigrants must have lived in the United States for five years prior to the enactment of the bill and entered the country before the age of 14. They must have “good moral character” and must not have committed a felony or more than one misdemeanor. Applicants must be 28 or younger or under 32 if they already have a bachelor's degree from a U.S. college.

Once they are granted a W-1 non-immigrant visa, they have six years to earn a bachelor's, associate's, vocational/technical or advanced degree or serve in the U.S. military for four years.

To maintain their W-1 legal status, immigrants must check in every six months with the Department of Homeland Security. They cannot take public welfare benefits or receive federal student loans. They would be allowed to work while attending school.

Once they have earned a degree or served four years in the military, applicants could receive a W-2 visa, which is a four-year work visa. It also allows visa holders to continue their studies to earn a master's degree or other advanced degree.

After completing four years of work or earning an advanced college degree, the young workers or graduates could apply for a W-3 visa to become permanent legal residents. Their status would have to be renewed every four years.

No new “green cards” would be added by the proposed law, but a W-3 visa holder could apply under current law to obtain one.

The bill does not offer citizenship to those who complete the requirements for a W-3 visa. Kyl said the bill does not preclude visa holders from applying for citizenship, but offers no guarantee that they will receive it.

“No path to citizenship is denied you here,” Kyl said. “We're not relegating people to some desert island.”

But Giovagnoli said it will be difficult for the young immigrants to become citizens unless they have family members who are citizens or an employer who is willing to sponsor them for citizenship.

“By cutting out the ability for them to earn citizenship, you're continuing to perpetuate the possibility of a second-class status for these young people who want to become citizens and contribute to the country that has been their home,” she said. “We're hurting their dream and our country's future.”

The bill comes in the wake of executive action by the Obama administration earlier this year to offer the young immigrants a legal way to stay in the country.

In June, Homeland Security Secretary Janet Napolitano announced that certain young people who were brought to the United States as young children",@ do not present a risk to public safety, and meet certain eligibility requirements, can apply to be exempt for deportation for at least two years and receive authorization to work.

Latino voters viewed President Obama more favorably after the action, according to pre-election polls by Latino Decisions.

Contact Erin Kelly at ekelly@gannett.com

Copyright 2012 Gannett Company, Inc.
All Rights Reserved

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Three different fiscal cliff explanations…


The Fiscal Cliffhanger….

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2.

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