Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P32 doc

EXECUTIVE PRIVILEGE Executive privilege is the right of the president of the United States to withhold information from Congress or the courts.. Historically, presidents have claimed the

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4,393) In December 1995, President BILL

CLINTON ordered the U.S reserve armed forces

into active duty to augment the active armed

forces’ operations in and around the former

Yugoslavia (Bosnia) (Exec Order No 12,982,

60 Fed Reg 63,895)

Following the SEPTEMBER 11TH TERRORIST

ATTACKSon the United States, PresidentGEORGE

W.BUSHused his authority to issue a number of

executive orders Following his declaration of a

national emergency on September 14, 2001, he

called members of the armed forces’ Ready

Reserve to active duty (Exec Order No 13,223,

66 Fed Reg 48201) Ten days later, he issued an

executive order that blocked the financing of

terrorist organizations (Exec Order No 13,224,

66 Fed Reg 49079) President Bush also created

theHOMELAND SECURITY DEPARTMENTby executive

order, before Congress authorized this

cabinet-level department (Exec Order No 12,228, 66

Fed Reg 51812)

Several of Bush’s subsequent executive orders

were the subject of controversies Bush issued

executive orders authorizing different types of

interrogation techniques used by the CENTRAL

INTELLIGENCE AGENCY Based on these orders,

interrogators at a detention facility at

Guanta-namo Bay, Cuba, used such tactics as

“water-boarding” andsleep deprivation while questioning

terrorist suspects Bush also issued directives

blocking funding for stem-cell research

Supporters of PresidentBARACK OBAMAcalled

for Obama to overrule several of Bush’s orders

On January 22, 2009, Obama signed an order to

close the Guantanamo Bay base It was one of

Obama’s first acts as president

FURTHER READINGS

Anderson, Leanna M 2002 “Executive Orders, ‘the Very

Definition of Tyranny, ’ and the Congressional Solution,

and the Separation of Powers Restoration Act ”

Hastings Constitutional Law Quarterly 29 (spring):

589-611.

Ostrow, Steven 1987 “Enforcing Executive Orders: Judicial

Review of Agency Action under the Administrative

Procedure Act ” George Washington Law Review 55.

Raven-Hansen, Peter 1983 “Making Agencies Follow

Orders: Judicial Review of Agency Violations of

Executive Order 12,291 ” Duke Law Journal.

Rodrigues, Ricardo Jose Pereira 2007 The Preeminence of

Politics: Executive Orders from Eisenhower to Clinton.

New York: LFB Scholarly Pub.

Sterling, John A 2000 “Above the Law: Evolution of

Executive Orders.” University of West Los Angeles Law

Review 31 (annual).

Warber, Adam L 2006 Executive Order and the Modern Presidency: Legislating from the Oval Office Boulder, Colo.: Lynne Rienner Publishers.

CROSS REFERENCES Administrative Acts; Administrative Agency; Administrative Law and Procedure; Constitution of the United States;

Federal Register; Japanese American Evacuation Cases;

Presidential Powers.

EXECUTIVE PRIVILEGE Executive privilege is the right of the president of the United States to withhold information from Congress or the courts

Historically, presidents have claimed the right of executive privilege when they have information they want to keep confidential, either because it would jeopardize national security or because disclosure would be con-trary to the interests of the executive branch

The Constitution does not specifically enu-merate the president’s right to executive privi-lege; rather, the concept has evolved over the years as presidents have claimed it As the courts have ruled on these claims, their decisions have refined the notion of executive privilege and have clarified the instances in which it can be invoked

The courts have ruled that it is implicit in the constitutional SEPARATION OF POWERS, which assigns discrete powers and rights to the legisla-tive, execulegisla-tive, and judicial branches of govern-ment In reality, however, the three branches enjoy not separate but shared powers and, thus, are occasionally in conflict When the president’s wish to keep certain information confidential causes such a conflict, the president might claim the right of executive privilege

The term executive privilege emerged in the 1950s, but presidents since GEORGE WASHINGTON

have claimed the right to withhold information from Congress and the courts The issue first arose in 1792, when a congressional committee requested information from Washington regard-ing a disastrous expedition of General Arthur St

Clair against American Indian tribes along the Ohio River, which resulted in the loss of an entire division of the U.S Army Washington, con-cerned about how to respond to this request and about the legal precedent his actions would set, called a cabinet meeting Although no official record was kept of the proceedings, THOMAS JEFFERSONdescribed the deliberations in his diary

The participants, Jefferson wrote, concluded that Congress had the right to request information

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from the president and that the president“ought

to communicate such papers as the public good would permit & ought to refuse those the disclosure of which would injure the public.” In the case at hand, they agreed that“there was not a paper which might not be properly produced,” so Washington provided all the documents that Congress had requested This event, though notable as the first recorded deliberation con-cerning executive privilege, did not carry pre-cedential value until after 1957, when Jefferson’s notes were discovered In 1958, Attorney General

WILLIAM P ROGERS cited Jefferson’s remarks as

precedent for an absolute presidential privilege Legal scholar Raoul Berger declaimed Rogers’s arguments as“at best self-serving assertions by one of the claimants in a constitutional boundary dispute.” Instead, Berger argued, Washington’s willingness to turn over the requested documents shows his recognition of Congress’s right to such materials

In subsequent incidents, however, Washing-ton and his successors did choose to withhold requested information from Congress, citing various reasons In 1794, for example, the Senate requested from Washington the correspondence

of Gouverneur Morris, the U.S ambassador to France, who was suspected of aiding the French aristocrats against the revolutionaries despite the official U.S stance of neutrality Washington provided the letters, but he censored them first, acting on the advice of officials such as Attorney General WILLIAM BRADFORD, who said that the president should “communicate to the Senate such parts of the said correspondence as upon examination he shall deem safe and proper to disclose: withholding all such, as any circum-stances, may render improper to be communi-cated.” The following year, Washington refused

to provide the House with information relating to Ambassador John Jay’s negotiation of a treaty with Great Britain, arguing that the House had no constitutional right to participate in the treaty-making process and so had no right to request materials associated with it

The judiciary, like Congress, can also request information from the president When

AARON BURRwas indicted on charges ofTREASON, for example, both Congress and the judiciary asked President Jefferson to provide correspon-dence from General James Wilkinson, a Burr confidant and aide Jefferson argued that it was wrong to ask him to provide private letters, written to him, containing confidential infor-mation Chief Justice JOHN MARSHALL, presiding over the Burr trial, United States v Burr, 25 Fed Cas 187, 191 (C.C Va 1807), did not ultimately force Jefferson to turn over each requested document, but he did maintain the right of the judiciary to request such informa-tion from the president, writing that “the

PRESIDENT OF THE UNITED STATES may be … required to produce any paper in his posses-sion” and adding that “[t]he occasion for demanding it ought, in such a case,[to] be very strong, and to be fully shown to the court before its production could be insisted on.”

President Richard

Nixon cited executive

privilege when he

refused to release

tapes of his

conversations in the

Oval Office to the

Senate committee

investigating the

Watergate burglary

and cover-up.

AP IMAGES

300 EXECUTIVE PRIVILEGE

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As the power of the president’s office grew

over the nineteenth and twentieth centuries,

presidents attempted more frequently to use

executive privilege to shield themselves and

their subordinate officials from investigation

In 1836, for example, a House committee

requested personnel rosters and salary

informa-tion from President ANDREW JACKSON He

de-clined to fulfill the request, stating that he

would“repudiate all attempts to invade the just

rights of Executive Departments, and of the

individuals composing the same.” Similarly, in

1909, President THEODORE ROOSEVELT took

per-sonal possession of FEDERAL TRADE COMMISSION

documents requested by Congress, claiming

immunity for the materials since they were

under presidential control In both cases,

Congress failed to pursue its investigations

During the presidency of DWIGHT D

EISEN-HOWER, executive privilege underwent three

major developments First, in the area of

national security, the Supreme Court ruled in

United States v Reynolds, 345 U.S 1, 73 S Ct

528, 97 L Ed 727 (1953), that the military may

refuse to divulge requested information when

national security is at stake While warning that

such requests could not be simply left to the

“caprice of executive officers,” the Court

maintained that there would be times when

“there is a reasonable danger that the

compul-sion of the evidence will expose military matters

which, in the interest of national security,

should not be divulged.”

The second development in the use of

executive privilege became known as the candid

interchange doctrine In an attempt to shield the

executive branch from the bullying investigative

tactics of SenatorJOSEPH R.MCCARTHY, President

Eisenhower directed that executive privilege be

applied to all communications and

conversa-tions between executive branch employees;

without the assurance of confidentiality, he

claimed, the employees could not be completely

candid This doctrine marked a tremendous

change in the scope of executive privilege,

extending it from the president and the

president’s top advisers to the myriad offices

and agencies that make up the executive branch

The third development in executive

privi-lege resulted from Kaiser Aluminum & Chemical

Corp v United States, 157 F Supp 939, 141 Ct

Cl 38 (Cl Ct 1958) In this case, Kaiser sought

documents containing executive branch

employees’ opinions regarding the sale of aluminum manufacturing plants The court ruled that it was ultimately up to the courts

“to determine executive privilege in litigation,”

adding that“the privilege for intradepartmental advice would very rarely have the importance of diplomacy or security.” The opinion in this case contains the first recorded use of the phrase executive privilege

The use of executive privilege decreased during the 1960s, but it became the crux of the constitutional crisis created by a series of scandals involving President RICHARD M NIXON

and his associates, known as WATERGATE When Congress sought to obtain White House tapes containing Oval Office conversations, Nixon refused to turn them over, claiming that the tapes were subject to absolute executive privi-lege and asserting that the judiciary had no authority to order their production or inspec-tion Eventually the dispute reached the Su-preme Court, where, in United States v Nixon,

418 U.S 683, 94 S Ct 3090, 41 L Ed 2d 1039 (1974), the Court ruled against Nixon While acknowledging the importance of the presi-dent’s claims, the Court stated that “neither the doctrine of separation of powers, nor the need for confidentiality of high level communica-tions, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.”

In its opinion, therefore, the Court explicitly recognized the president’s authority to assert executive privilege but ruled that the use of executive privilege is limited, not absolute

Furthermore, the Court maintained that the judiciary, not the president, has the power to determine the applicability of executive privi-lege While the Court affirmed the use of executive privilege, therefore, it determined that

in this case, the right of the U.S people to full disclosure outweighed the president’s right to secrecy This momentous decision soon led to Nixon’s resignation from the office of president

Executive branch officials under Presidents

WILLIAM JEFFERSON CLINTON and GEORGE W BUSH

have sought to limit dissemination of informa-tion through executive privilege, though these efforts were often unsuccessful When Clinton was investigated by INDEPENDENT COUNSEL KEN-NETH W.STARR about whether Clinton lied in a deposition regarding an affair with a former White House intern, Starr subpoenaed SECRET SERVICE agents to testify before a GRAND JURY

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about Clinton’s actions Several agents refused

to testify This forced Starr to file a motion in the U.S district court for the District of Columbia to compel their testimony The agents asserted they were protected by a

“protective function” privilege that allowed them to conceal what they observe in the protection of the president

U.S District Judge Norma Holloway Johnson declined to recognize the privilege, holding that there was no support for it in the U.S Constitu-tion, federal statute, or the common law Johnson cited federal statutes that require the president to accept Secret Service protection and require executive branch personnel, which includes Secret Service agents, to report criminal activity that they observe The absence of a protective function privilege in those statutes suggested that Congress did not intend to create one She rejected the argument that without the privilege, presidents would push away their protectors

Partly in response to what he perceived as

an increasing level of legislative and judicial encroachment on the powers of the executive branch, President George W Bush sought to restore to the executive office the constitutional and inherent powers of the presidency as they existed before Watergate scandal and the Nixon administration His first opportunity came in a clash with the Government Accounting Office (GAO), which sought release of transcripts of meetings between Vice President Richard B

Cheney and energy executives

The comptroller general filed a lawsuit seeking to compel disclosure of the transcripts

But the U.S District Court for the District of Columbia dismissed the action, concluding that the comptroller lacked standing Walker v

Cheney, 230 F Supp 2d 51 (D.D.C 2002) The GAO decided not to attempt an appeal because doing so would have required a significant investment of time and resources and because other private litigants were already pursuing the same information through other lawsuits In its final report, the agency stated that the vice president’s “unwillingness to provide NEPDG records and other related information precluded

us from fully achieving our objectives in accor-dance with generally accepted government audit-ing standards and substantially limited our ability

to answer” Congress

Emboldened by this victory, Cheney next attempted to block a request for information

without formally invoking executive privilege Several public interest and environmental groups sued the National Energy Policy Development Group (NEPDG), an entity within the executive branch, and its individual members, including the vice president, cabinet members, and other federal officials, requesting information from NEPDG meetings on grounds that disclosure was required by the requirements of the Federal Advisory Committee Act (FACA) The U.S District Court for the District of Columbia entered orders permitting wide-ranging discov-ery against the vice president and other senior officials in the executive branch Judicial Watch, Inc v National Energy Policy Development Group,, 219 F Supp 2d 20 (2002) The vice president then filed an interlocutory appeal, petitioning for a writ of mandamus vacating the district court’s discovery orders The U.S Court

of Appeals for the District of Columbia dismissed the mandamus petition on grounds that the vice president had failed to expressly invoke executive privilege, which left the court with no legal basis for denying the discovery request In re Cheney,

334 F.3d 1096 (2003)

The Supreme Court disagreed and vacated the D.C Circuit’s opinion Cheney v U.S Dist Court for Dist of Columbia, 542 U.S 367, 124 S

Ct 2576, 159 L Ed 2d 459 (2004) The Court said that the parties must“give recognition to the paramount necessity of protecting the executive branch from VEXATIOUS LITIGATION that might distract it from the energetic performance of its constitutional duties.” The constitution does not leave the executive branch with the sole option of invoking executive privilege as its only means of objecting to an overbroad and burdensome discovery request made by public interest groups, another branch of the government, or members

of the public, especially when the request, the Court stressed, “asks for everything under the sky.” Most legal observers interpreted the Court’s opinion as enlarging executive power by increas-ing the level of deference courts must give to the executive branch even when the executive branch fails to formally invoke executive privilege Having won those two court battles, the Bush administration continued to test the boundaries

of executive power and executive privilege during the congressional investigation into the firings of

at least nine U.S attorneys by Attorney General Alberto Gonzalez in 2006 Gonzalez initially justified the firings simply by stating that all U.S attorneys “serve at the pleasure of the

302 EXECUTIVE PRIVILEGE

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president,” and the president decided it was time

to move in a different direction A subsequent

report by the DEPARTMENT OF JUSTICE (DOJ)

inspector general in October 2008, however,

found that the process used to fire the attorneys

was “arbitrary,” “fundamentally flawed,” and

“raised doubts about the integrity of Department

prosecution decisions.”

When the dismissals came to light amidst

allegations that they were politically motivated,

both the House and Senate Judiciary

Commit-tees, pursuant to their legislative and oversight

authority, opened investigations During their

testimony before Congress, many of the

dis-missed attorneys testified that DOJ officials and

Republican lawmakers pressured and

threat-ened them regarding corruption investigations

of Democratic politicians, actions that may have

constitutedOBSTRUCTION OF JUSTICEand unlawful

politically motivated retaliation The

controver-sy ultimately led to the resignation of Attorney

General Gonzales The White House

main-tained that President Bush was neither involved

in, nor aware of, the removal process

During Congress’s investigations, both the

Senate and House Judiciary Committees issued

subpoenas directed at numerous White House

officials, including presidential counsel Harriet

Miers, White House Chief of Staff Joshua

Bolten, and Deputy White House Chief of Staff

Karl Rove In response, the White House

asserted executive privilege to block the

sub-poenas, citing the president’s need to receive

candid advice from his staff without the chilling

effect that fear of public scrutiny could produce

Relying on the claim of executive privilege,

Miers and Rove failed to appear as directed by

the subpoenas, and Bolten refused to turn over

subpoenaed documents After months of legal

wrangling, the House of Representatives voted

223 to 32 to hold Miers and Bolten in contempt

of Congress for failure to appear before the

House Judiciary Committee TheSENATE

JUDICIA-RY COMMITTEElikewise found Rove and Bolten in

contempt

Upon passage of the House contempt

citations, House Speaker Nancy Pelosi referred

the citations to the DOJ in accordance with the

contempt of Congress statute and requested a

grand jury investigation Newly appointed

Attorney GeneralMICHAEL MUKASEYdeclared that

the DOJ would not pursue a grand jury

investigation, as, in his opinion, the officials

had committed no crime As a result, on March

10, 2008, the House Judiciary Committee filed a civil suit in the U.S District Court for the District of Columbia, seeking an order that Miers and Bolten comply with the subpoenas

The district court granted the committee’s motion for SUMMARY JUDGMENT Committee on Judiciary, U.S House of Representatives v Miers,

558 F Supp 2d 53 (2008) But the U.S Court of Appeals for the District of Columbia Circuit stayed the district court’s summary judgment order, while the matter was being appealed

Committee on Judiciary of U.S House of Representatives v Miers, 542 F.3d 909 (2008)

No decision had been reached as of summer

2009 by the D.C Circuit However, in 2009, just days before he left office, President Bush ordered White House Counsel Fred Fielding

to instruct Rove, Miers, and Bolten to continue ignoring the congressional subpoenas

FURTHER READINGS Aman, Alfred C., Jr., and William T Mayton 2001.

Administrative Law 2d ed St Paul, MN: West.

Magid, Adam K 2009 “Note: The Negative Executive Privilege ” Stanford Law and Policy Review 20.

Pierce, Richard J., Jr 2002 Administrative Law Treatise, 4th ed New York: Aspen Law & Business.

Sacharoff, Laurent 2009 “Former Presidents and Executive Privilege ” Texas Law Review 88 (December).

CROSS REFERENCES Separation of Powers; Watergate

EXECUTORS AND ADMINISTRATORS Those who are designated by the terms of a will or appointed by a court of probate to manage the assets and liabilities of the estate of the deceased

When a person dies leaving property, that property, called an estate, is usually settled or administered under the supervision of SPECIAL COURTS Depending on the state, such courts are called probate, surrogate, or orphans’ courts

They are typically county courts with jurisdic-tion and powers defined by state laws

States require court supervision for the settlement of estates for a number of reasons

Courts ensure that the assets of an estate will be properly collected, preserved, and assessed; that all relevant debts of the deceased and taxes will

be paid; and that remaining assets will be distributed to the heirs according to the provisions of the will or applicable laws

The duty of settling and distributing the estate of a decedent (one who has died) is

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assigned to personal representatives of the decedent APERSONAL REPRESENTATIVE may be an executor (male or female) or executrix (female),

or administrator (male or female) or adminis-tratrix (female) An executor or executrix is the person named in a will to administer the estate

An administrator or administratrix is a person appointed by the court to administer the estate

of someone who died without a will

Executors and administrators act asOFFICERS

OF THE COURTbecause they derive their authority from court appointments They are also consid-ered the fiduciaries, or trusted representatives,

of the deceased As such, they have an absolute duty to properly administer the estate solely for its beneficiaries

Probate is the process by which the court establishes that a will is valid The first step in the probate process is to file the will in the appropriate court with a petition to admit it to probate and to grantLETTERS TESTAMENTARYto the person designated as executor of the will Letters testamentary are the formal instruments of authority and appointment given to an executor

by the probate court, empowering that person

to act as an executor

If an executor is unable or refuses to serve, if there is no will, or if the will is deemed to be inauthentic or invalid, the court appoints an administrator Letters of administration are the formal court papers that authorize a person to serve as an administrator of an estate that lacks

a valid will

No administrator is needed if a person dies without a will, possesses no assets, and owes no debts Where a person dies leaving an estate, but there are no known living heirs, the state usually receives the property under the doctrine of escheat In such cases, administration is not required, unless debts must be paid from the estate’s assets before the state takes its interest

The administration of a decedent’s estate is controlled by statute The probate court is authorized by statute to determine the fundamen-tal facts essential to the administration of an estate

As a general rule, the place of the decedent’s last LEGAL RESIDENCE determines which probate court shall have jurisdiction over settlement of the estate

Executors

A person making a will—called a testator—

should find out whether his or her choice of

executor is willing to serve in that role This small but sensible courtesy can prevent the spending of needless time and money in administration of the estate A person named

as an executor in a will is free to accept or reject the position within aREASONABLE TIMEfollowing the testator’s death If it is rejected, the court then must appoint another representative, causing a delay in the settlement of the estate and its final distribution to the heirs, and incurring greater legal fees for the estate Many people choose their surviving spouse

as executor, since that person usually has the greatest knowledge of their financial affairs as well as the family situation Some people name several persons to serve as coexecutors, to ensure that the estate will be handled fairly and honestly Frequently, those making a will choose a professional such as an attorney or trust company to act as a coexecutor and to assist with complex issues of the estate

It is also prudent for a testator to name an alternative executor to serve in the event the designated executor is unable or refuses to serve A testator may change an executor as long

as the change is recorded properly in the will Anyone who is capable of making a will is capable of becoming an executor Courts can disqualify as executors persons who are legally incompetent or unsuitable When this occurs, the court appoints either an alternative execu-tor, if the will has named one, or an administrator A person cannot be disqualified

as an executor merely because he or she might inherit part of the estate

Administrators

A court usually appoints an administrator when

a person dies without leaving a will In most jurisdictions, courts are required by statute to name the spouse of the decedent as administra-tor Where no spouse is involved, administration

is usually assigned to the next of kin, such as parents, brothers and sisters, nieces and nephews, or cousins Special laws, called statutes

ofDESCENT AND DISTRIBUTION, determine the next

of kin who are entitled to serve as administrators

Terms of Office

As a general rule, executors and administrators are required to take an oath as prescribed by statute before beginning their duties The taking

of the oath constitutes acceptance of the office

304 EXECUTORS AND ADMINISTRATORS

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In some jurisdictions, statutes require the

executor or administrator of an estate to file a

bond to protect those interested in the estate The

amount of an executor’s or administrator’s bond

will be forfeited if the representative is found to

have deliberately mismanaged the estate

The authority of an executor or

administra-tor terminates only when the estate has been

completely administered or the executor dies,

resigns, or is suspended or removed An

executor can be removed from office for

grounds specified by law, such as

mismanage-ment, waste (abuse or destruction of the

property), disloyalty, improper administration,

NEGLIGENCE, or other misconduct in the admin-istration of the estate A representative can also

be removed for failure to file a proper inventory, accounts, or tax returns within the required time; for failure to comply with a court order requiring him or her to furnish a bond; or for bankrupting the estate The representative should be removed where personal interests conflict with official duties or where there is such enmity between the personal representa-tive and the beneficiaries that it might interfere with proper management of the estate

Liability Considerations for Executors

and Administrators

Y

B

our Aunt Lillian has just called to ask if you will

serve as executor for her estate after her

death You are honored that she has considered you

for this important responsibility, but you also know

that there are risks associated with becoming an

executor or administrator

The most potentially damaging risk is liability

for actions undertaken on behalf of the estate

The estate’s beneficiaries, who are likely your

relatives, may sue you if any of the following

situations occur:

n You fail to properly secure and insure the

assets of the estate, and it suffers a loss as a

result

n You diminish the estate through imprudent

investments or inadequate record keeping

n You fail to pay taxes on the estate, in which

case you may be personally liable for interest

and penalties

n You sell an asset of the estate without

authority to do so

n You delay settlement of the estate

unnece-ssarily or are tardy in executing important

transactions

n You engage in actions that constitute a

conflict of interest

n You improperly delegate decisions to others

who have no legal authority over the estate

nYou approve a coexecutor’s or coadminis-trator’s breach of duty

Fortunately, you can usually avoid these pro-blems by taking a few simple steps:

nMost important of all, stay in touch with the estate’s beneficiaries Keep them informed of your actions and the general condition of the estate

nPromptly meet all required deadlines

nMaintain accurate records of all estate transactions and document all decisions made Keep receipts of distributions made

to beneficiaries

nObtain the written consent of all beneficiaries when changing estate investments

nObtain a court order from the probate court for significant estate transactions Petition the court if the will is unclear regarding particular items

nKeep affairs of the estate confidential

nAvoid conflicts of interest Do not put your own interests ahead of the interests of the estate’s beneficiaries, and do not use assets

of the estate for your own gain or profit

By using common sense and following these guidelines, you can effectively settle an estate and avoid potential lawsuits

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General Duties

The general and primary duties of the adminis-trator or executor are to administer the estate in

an orderly and proper manner to the best advantage of all concerned, and to settle and distribute the assets of the estate as quickly and reasonably as is practicable

Executors must submit the will to probate court, then dispose of the estate according to the will Both executors and administrators must make an inventory and appraisal of the estate, then file that information with the court

Executors and administrators are held liable for the debts and taxes of the estate, as well as any losses resulting from unauthorized or improper investments of estate funds

Executors and administrators are, as a rule, allowed a reasonable compensation for the services they perform in the administration of

a decedent’s estate This right arises from and is controlled by statute, unless the will specifically provides the amount of an executor’s compen-sation Commissions are the most common form of compensation to executors and admin-istrators

FURTHER READINGS Plotnick, Charles K., and Stephan R Leimberg 2002 How to Settle an Estate: A Manual for Executors and Trustees 3d

ed New York: Plume.

“So You’ve Agreed to Be an Executor.” 2001 Kiplinger’s Retirement Report (September).

Wilson, Douglas D 2001 Executor & Trustee Survival Guide.

Honolulu: Fiduciary.

EXECUTORY That which is yet to be fully executed or performed;

that which remains to be carried into operation or effect; incomplete; depending upon a future perfor-mance or event The opposite of executed

EXEMPLIFICATION

An official copy of a document from public records, made in a form to be used as evidence, and authenticated or certified as a true copy

Such a duplicate is also referred to as an exemplified copy or aCERTIFIED COPY

EXERCISE

To put into action, practice, or force; to make use

of something, such as a right or option

To exercise dominion over land is to openly indicate absolute possession and control

To exercise discretion is to choose between doing and not doing something, the decision being based on sound judgment

EXHAUSTION OF REMEDIES The exhaustion-of-remedies doctrine requires that procedures established by statute, common law, contract, or custom must be initiated and followed in certain cases before an aggrieved party may seek relief from the courts After all other available remedies have been exhausted, a lawsuit may be filed Most commonly, exhaustion of remedies applies where an administrative agency has been established by Congress to handle grievances that occur under its purview For example, if a dispute arises over a provision in a labor contract, the parties may be required to follow specific grievance procedures administered by the NATIONAL LABOR RELATIONS BOARD (NLRB) After the parties have satisfied each requirement

of the grievance process, and the NLRB has reached its final decision, they may appeal the decision to a higher tribunal

The rationale behind requiring parties to exhaust their administrative remedies is that the agencies have the specialized personnel, experi-ence, and expertise to sort and decide matters that arise under their jurisdiction Also, the doctrine ofSEPARATION OF POWERSdictates that an agency created by Congress should be allowed

to carry out its duties without undue interfer-ence from the judiciary

The exhaustion-of-remedies doctrine also applies in certain classes of cases where state remedies must be exhausted before a party may pursue a case in federal court In these situations, exhaustion of remedies is a rule of comity, or courtesy, by which federal courts defer to state courts to make the initial determination as to all claims, federal or state, raised in a case For example, petitions for

HABEAS CORPUS(release from unlawful imprison-ment) by an inmate of a state prison are not heard by a federal court until after all state remedies are exhausted (see Darr v Burford, 339 U.S 200, 70 S Ct 587, 94 L Ed 761[1950])

As with most legal doctrines, there are exceptions to the exhaustion-of-remedies re-quirement A party bringing aCIVIL RIGHTSaction under 42 U.S.C.A § 1983 is not required to exhaust state remedies before filing suit in federal court In Patsy v Board of Regents, 457 U.S 496, 102 S Ct 2557, 73 L Ed 2d 172 (1982), the Supreme Court held that the

306 EXECUTORY

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plaintiff—who claimed she was denied

employ-ment by a state university because of her race

and her sex—was not required to exhaust her

state administrative remedies before filing her

suit in federal court, because such a

require-ment would be inconsistent with congressional

intent in passing civil rights legislation

Similarly, a criminal defense exception has

been carved out by the Court It allows a criminal

DEFENDANT to raise the defense of improper

administrative procedure even in cases where

the defendant failed to exhaust all available

administrative remedies For example, in McKart

v United States, 395 U.S 185, 89 S Ct 1657, 23 L

Ed 2d 194 (1969), the defendant—who was

charged with failure to report for induction into

the armed services—was allowed to claim that his

draft classification was invalid even though he

had failed to pursue administrative remedies

Finally, courts may allow an exception to

the exhaustion-of-remedies doctrine where

administrative remedies are inadequate or

would cause irreparable harm In a case

involving a claim ofWRONGFUL DISCHARGE from

employment, the Supreme Court held that the

plaintiff—who may have had to wait up to ten

years to be heard by the administrative

agency—was not required to exhaust available

administrative remedies before commencing a

court action (Walker v Southern Ry., 385 U.S

196, 87 S Ct 365, 17 L Ed 2d 294[1966])

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