A Tale of Two Prepositions

AUGUST 2, 2016

FOR IMMEDIATE RELEASE:

A TALE OF TWO PREPOSITIONS OR WHY REPUBLICANS WILL SWEEP ALL STATEWIDE ELECTIONS IN NOVEMBER, UNLESS…

By Bruce C. Cohen

            This is the tale of two tiny prepositions, “to” and “by”. Between them, they have the power to decide all statewide elections this November. As it stands today, “to” is winning which means that if nothing changes between now and the November elections, Republicans will sweep all statewide contests.

            There are 115 counties (including St. Louis City) in Missouri. The election authorities for these counties is established in Missouri Revised Statutes Section 115.015 which provides, “The county clerk shall be the election authority, except that in a city or county having a board of election commissioners, the board of election commissioners shall be the election authority.”  Section 115.017 establishes the counties where a board of election commissioners can operate. Six counties qualify, including St. Louis County, St. Louis City, Kansas City, Clay County, Jackson County and Platte County. According to the Official Manual State of Missouri 2015-2016, as of 2014, these six counties had a total of 1,647,478 voters out of a statewide total of 4,081,259, comprising approximately forty percent of the electorate.

            In 109 of 115 counties, the county clerk serves as the election authority. In the other six counties listed above, however, a board of election commissioners serves as the election authority. The problem is, these six boards of election commissioners have no constitutional authority to act. Missouri Constitution Art. IV, Section 12 provides in relevant part, “Unless discontinued all present or future boards… of the state exercising administrative or executive authority shall be assigned by law or by the governor as provided by law to the office of administration or to one of the fifteen administrative departments to which their respective powers and duties are germane.” (Emphasis added) On its face, this section applies to “all” executive branch boards without exception, including boards of election commissioners. This is where the preposition “by” comes into play. Boards may be assigned “by” law or “by” the governor as provided “by” law.

Nothing in Missouri Revised Statutes Chapter 115 assigns the boards of election commissioners by law to the office of administration or to an executive branch department as required by Missouri Constitution Art. IV, Section 12. Accordingly, the responsibility for assigning these boards falls on the governor. The law providing for assignment of a board by the governor is the Omnibus State Reorganization Act of 1974, Missouri Revised Statutes Appendix B (hereinafter “OSRA”). Under the OSRA, if a board is not assigned by law to the office of administration or a state executive branch department, then the governor may assign the board. All it takes is a one page letter. It is so simple, even John Ashcroft could do it (see e.g. EXECUTIVE ORDER 86-03).

This is where the preposition “to” comes into play. Unfortunately, no governor has ever assigned the six boards of election commissioners “to” the office of administration or an executive branch department. The Official Manual State of Missouri 2015-2016, at page 871 lists the six boards of election commissioners as “Boards Assigned to the Governor”. Under Missouri Constitution Art. IV, Sec. 12, there is no such thing as a “Board Assigned to the Governor”. Boards may be assigned “by” the governor, not “to” the governor. Until such time as the boards of election commissioners are assigned “to” the office of administration or an executive branch department, those boards have no more authority to conduct election activities than a Wednesday night coed volleyball league.

In the governor’s election in 2012, Democrat Jeremiah W. (Jay) Nixon defeated Republican David (Dave) Spence 1,494,056 to 1,160,265. Governor Nixon outpolled Spence 725,825 to 366,058 in the six board of election commissioner counties: St. Louis 324,748 to 185,704; St. Louis City 117,979 to 19,478, Kansas City 107,474 to 23,806; Jackson 94,008 to 73,518; Clay 57,962 to 43,398; Platte 23,654 to 20,154. Without these six counties, Spence won 794,207 to 768,231. Similarly, in the Secretary of State election, Democrat Jason Kander defeated Republican Shane Schoeller 1,298,022 to 1,258,937. But if you subtract the votes from the six board of election commissioner counties (Kander 675,103 to Schoeller 382,293), Kander lost 876,644 to 622,919.

In short, democrats cannot win a statewide election without the votes from the six board of election commissioner counties. But without a constitutional election authority, the forty percent of the Missouri electorate residing in those six counties are disenfranchised. Their votes cannot be counted.

There are two ways to return the franchise to the voters in the six affected counties. First, Governor Nixon could assign the boards of election commissioners to the office of administration or an executive branch department in accordance with Missouri Constitution Art. IV, Section 12 and the OSRA. Second, the legislature could assign the boards by a new law. Unless one of these two things happen, Republicans have already swept the statewide elections in November. All that is left is the final paperwork.

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Copyright 8/2/16 by Bruce C. Cohen

Permission granted for reproduction with proper attribution.

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Bruce C. Cohen and Doni R. Miller are currently challenging the 2014 elections for St. Louis County Executive and Prosecutor at the Missouri Supreme Court, CAUSE NO. SC95793. Electronic copies of Appellants’ Brief are available upon request at bccohen1@earthlink.net.

Trump Campaign Shake Up Press Release

AUGUST 17, 2016

FOR IMMEDIATE RELEASE:

The Trump campaign announced a major shake up for the second time this political season. The executive chairman of Breitbart News LLC, Stephen Bannon, replaced Paul Manafort as the campaign's chief executive following Manafort's recent Ukrainian difficulties manufactured by the DNC and the Clinton campaign.

Mr. Trump explained, "We are absolutely thrilled, absolutely thrilled to bring Stephen Bannon on board. Breitbart is the world-wide leading publisher of right wing fantasy and fanfic. The world-wide leader. With Stephen here, we can finally start ignoring facts altogether."

Ballroom caning from The Mercies of Cinderella by Ken Charles

     It had the curious appearance of a ballroom dance. The twelve hand selected members of the Prince’s personal guard, in their finest dress uniforms, strode into the Court in two files of six. Each carried a four foot long cane at his side. As the two columns approached the thrones, the last in line stopped. Every four steps thereafter, the next in line from the rear would stop, until the first in each line stopped ten paces from the thrones. The guards then took two steps apart, clicked their heels once, then froze in rigid attention. Cinderella’s twelve Ladies in Waiting, dressed in diaphanous translucent white camlets, entered next in two files of six. When each had taken a place next to one of the guards, the Ladies curtsied to Prince and Princess.

     “Begin.”

     The Ladies turned around in unison, and bent over and grabbed their ankles. Each guard then parted his partner’s camlet at the rear, exposing twelve lovely pairs of creamy white orbs. The guards snapped back to attention as Captain of the Guard came forward, and bowed to the Prince and Princess. Captain of the Guard turned and addressed the twelve pairs.

     “It is the duty of a Lady in Waiting to attend to the needs and desires of her mistress. But the paramount duty of every Lady, which rises above tending to the needs or desires of her mistress, is to ensure the safety and well being of her mistress, even when it might conflict with a Lady’s other duties. In this regard, these Ladies have failed their mistress. While the fault might not be entirely their own, there is still a price to be paid for such negligence.”

     Cinderella felt tears welling up. She had not told any of them what she intended when she went for her ride. Indeed, until she gave Snow Princess her apple, she had not even thought of such a misadventure. It was not fair that her Ladies should have to pay for her misdeeds.

     “Assume positions. One!”

     Crack!

     Twelve simultaneous cracks echoed through the Court, accompanied by twelve concurrent gasps.

     “Two!”

     Crack!

     Twelve red lines appeared an inch below twelve others. Twelve more gasps were followed by several intermittent sobs.

     “Three!”

     Crack!

     The Prince and Princess looked out at thirty-six fiery bars.

     “Four!”

     Crack!

     A dozen yelps, and a dozen more crimson weals leapt to the fore.

     “Five!”

     Crack!

     Tears fell readily as a fifth line blazed forth, forming a dozen perfect staffs for musical compositions.

     “Six!”

     Crack!

     A dozen vicious diagonal cuts barred the gates. The guards snapped back to attention, as Captain of the Guard turned back to the Prince.

     “A full measure, Milord, as ordered. Does it meet with Milord’s satisfaction?”

     “Well done, Captain of the Guard. You may dismiss your troops.”

     Captain of the Guard bowed, and turned to his troops.

     “Company dismissed.”

     The guards clicked their heels, then retreated in the reverse order from their entry, leaving the weeping Ladies bent over on display. When the last of the guards had left the Court, Captain of the Guard turned back to the Prince and Princess, bowed, and took his leave.

    The Prince rose. “I leave you, Milady, to deal with your Ladies further as you deem meet and proper.”

     Cinderella rose and curtsied to the Prince.

     “Milord.”
     

     The Prince left the Court to the fanfare of a dozen muted sobs. Once the great hall doors closed behind him, Cinderella ran down the steps to the center of the room.

     “Come to me!”

     The Ladies ran to Cinderella and hugged her and each other. Together they cried.

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Ready to read the rest?  http://www.amazon.com/dp/B01B1W4YWK

INTERPRETING YOUR NEW PUBLISHING CONTRACT

     A publishing contract is like any other contract. It establishes a business relationship between the author and the publisher. It is not an admission to a private social club. Although an author may feel privileged and proud to have a work under contract, the purpose of the contract is to exploit and disseminate the author’s work, not to stroke the author’s or the publisher’s egos.

I. “Shall” vs. “May”

     The publishing contract sets out the road map for the parties’ dealings, specifying what actions are required and so must be performed, and what actions are permitted and so are within the parties’ contemplation, but may or may not occur. Mandatory or required actions are frequently, though not exclusively, found in a clause containing the word “shall”.

Section 3--Within ten (10) days of the execution of this Agreement,  Author shall deliver three, right justified, printed copies of the Work on 17”x 23.529411” green paper to Publisher at Suite 123, Drilling Platform 138, North Sea.

Under this Section 3, the Author is required to deliver three copies of the work in a specific form, at a specific place, within a specified time period. Failure to perform any of these requirements constitutes a breach of the contract. Even though 20” x 20” paper has the same total surface area as 17” x 23.529411” paper, Author is required to use the latter paper.

     Permissive actions are frequently, though not exclusively, found in a clause containing the word “may”.

Section 4—Author may, in its sole discretion, substitute an electronic copy in PDF format for any written document or notice required or permitted to be sent under this Agreement. Any such substituted document or notice may be sent by facsimile transmission or e-mail in accordance with the contact provision of Section 3, 287 of this Agreement.

Under this Section 4, Author has the right, but not the obligation, to fax or email a document, rather than send a printed copy.

II. Basic Contract Construction

“You keep using that word. I do not think it means what you think it means.” Inigo Montoya in The Princess Bride (1987)

     The primary purpose of putting the parties’ agreement into writing is to make the parties’ rights and obligations clear. Unfortunately, sometimes the agreement isn’t as clear as the parties expected. Courts assume that everything in a contract was put there for a reason. Accordingly, wherever possible, a court will attempt to give meaning to every word in a contract. Therefore, just because the parties may disagree as to the meaning of a contract clause, it does not follow necessarily that the contract clause is ambiguous or unenforceable as written.

     Courts rely on a number of different kinds of rules for interpreting a contract. The most important rule, of course, is one that supports your position. That said, let’s take a look at a few of the more common rules.

     The first rule of contract construction is that there is no need to interpret a contract if the meaning is clear. Words are given their plain and ordinary meanings. If a simple reading will suffice, then a court will look no further.

Section Five—Author shall stand on the corner of Fifth Ave and Main Street in a chicken suit for one hour, commencing at 1:00 p.m. central standard time, on the third Tuesday in each calendar month containing the English letter “Y”.

This Section Five provides clear and unmistakable direction. Author is required (“shall”) to stand in a specified place, at a specified time, for a specified duration, in a specified manner of dress. There is no question as to Author’s obligations under this clause. A court will not resort to any rules of interpretation beyond the plain and ordinary meaning of the words in the clause. (The wisdom of such a clause is not the court’s concern. The clause was important to the parties or it wouldn’t have been included in the contract.)

     If there is some question as to a party’s rights or obligations under a particular contract clause, the next step is for a court to look at the contract as a whole to determine the meaning of clause.

“The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth…”  JARECKI v. G. D. SEARLE & CO., 367 U.S. 303 (1961)

     The meaning of general words that follow specific ones is limited by the meaning of the specific words.

"The rule of ejusdem generis, while firmly established, is only an instrumentality for ascertaining the correct meaning of words when there is uncertainty. Ordinarily, it limits general terms which follow specific ones to matters similar to those specified...” Gooch v. United States, 297 U. S. 124, 297 U. S. 128 (1936)

Similarly, contract clauses that are specific take precedence over general clauses (generalia specialibus non derogant rule). Although the Publisher may have the general right to control the cover design, if the Author has the right to review or reject a cover, that exception will take precedence.

     Another rule of construction worth noting is the rule that “the expression of one thing excludes other things” (expressio unius est exclusio alterius). Sometimes, what isn’t included in a contract is just as important as what is. When a contract clause expressly provides that the Publisher has the right to do “A”, “B” and “C”, then it does not have the right to do “D”. If the Publisher has the right to review and correct the text, that does not mean that it has the right to line edit and change those portions of the text that are not erroneous. The right to correct means that the Publisher can fix mistakes such as closing open quotations and replacing misspelled words with the proper spelling. It doesn’t mean it can change the Author’s word choices.

     Finally, while there are other rules of construction, one rule particularly needs mentioning. When all else fails, and a contract provision’s meaning is still unclear, then a court will construe a contract against the party that drafted the provision (contra preferentem rule). In most cases, the contract will be drafted by the publisher, and presented to the author on a “take or leave it” basis. In such a case, where any doubt remains as to the meaning of a clause, the court will construe the provision in question against the publisher.

III. The Zipper Clause

"Th-Th-Th-Th-Th-... That's all, folks." Porky Pig

     Somewhere near the end of the contract, there is probably a “zipper” clause. The zipper clause (also known as a “merger clause” or “integration clause”) states that the contract represents the entirety of the parties’ agreement. Any other writings or representations to the contrary are of no force or effect. What the court sees is what it gets. A strong zipper clause can cause a court to ignore evidence about what was discussed in the formation of the contract (parol evidence).

     It is important before signing a contract with a zipper clause to make sure that the contract fairly and accurately reflects Author’s negotiations with Publisher. If the Publisher talked about sending Author to an all expenses paid writer’s retreat in Fiji, it better appear in the contract. If it doesn’t, Author will not be permitted to argue, “But they said they would. That’s why I signed the contract.”

IV. Non-compliance – Cure – Termination of Agreement

“Once more unto the breach” Shakespeare

     A failure to follow the requirements of a contract is known as a “breach”. While every breach of a contract constitutes some kind of violation of a party’s rights or responsibilities, there is no hard and fast rule about the parties’ course of conduct following a breach. Some breaches can be fixed or “cured”. Other breaches cannot be fixed, and may lead to claims for damages and/or termination of the contract.

     How the parties respond to different breaches depends in part on their general course of dealings. If the parties have been dealing professionally and respectfully with each other, then it is more likely that minor breaches such as sending a document a day late where time is not of the essence will be ignored by the receiving party. However, where there is antipathy between the parties, even minor breaches may become major issues.

     Treating the other party professionally is more than a mere platitude or common sense. I recently had a problem with a publisher that had total control over the cover of one of my works. When I raised my concerns over the proposed cover with the publisher, instead of attempting to address those concerns, the publisher claimed its rights to control the cover under the contract. However, instead of stopping at an assertion of its rights, the publisher chose to add in gratuitous ad hominem attacks on me for having the audacity to question its judgment. When the publisher committed several breaches of the contract that were time sensitive and could not be fixed or cured prospectively (a bell once rung cannot be unrung), I exercised my right to terminate the agreement. Had the publisher addressed my concerns over the cover in a professional manner, even if I was unhappy with the final result, I might have been more forgiving of their subsequent breaches.

     Some contracts may include specific procedures for handling alleged breaches. For example, a clause may require the aggrieved party to notify the offending party of the nature of the breach, and give the offending party a certain amount of time to fix or cure the problem. However, if the breach is not cured in a timely manner, the offended party may be entitled to certain specified damages, or may even be entitled to terminate the contract. If there are specific procedures in the contract for raising the issue of a breach with the other party, then the complaining party may be required to follow those procedures before seeking relief in a court.

V. And in Conclusion…

     The best contract is one that the parties never need to consult. By maintaining a professional relationship, it may be possible to resolve many issues without ever resorting to the agreement. However, if it becomes necessary to review the contract, then be sure to read not only any provision in question, but also any other provisions that may help you understand it. Finally, when in doubt, don’t be afraid to consult with legal counsel.

Copyright CK 2/19/12