Gale Encyclopedia Of American Law 3Rd Edition Volume 7 P30 pps

The Court had to consider whether Nixon was required to turn over secret White House tape recordings to government prosecutors.. The tenor of Hughes’ opinion was significant, for he aban

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Nixon’s campaign for reelection, a group of men working for the Committee to Reelect the President broke into the Democratic party headquarters in the Watergate office complex

in Washington, D.C It was a crime that would

be traced back to the president

In November Nixon won a sweeping victory over his Democratic challenger, Senator George

S McGovern, of South Dakota, receiving 60.7 percent of the vote and carrying every state except Massachusetts The following March, testimony before the Senate select committee investigating the incident implicated the White House In televised hearings John W Dean III, Nixon’s White House counsel, told the Senate committee that Nixon had been involved from the start

Further testimony revealed that Nixon had secretly recorded all conversations that took place in the Oval Office of the White House

Congress and prosecutors began efforts to obtain the tapes In October 1973, his reputa-tion in jeopardy, Nixon carried out what came

to be called the Saturday Night Massacre

Angered by Watergate specialPROSECUTOR ARCHI-BALD COX, Nixon ordered Attorney General

ELLIOT L.RICHARDSONto dismiss Cox Richardson refused and resigned Deputy Attorney General William D Ruckelshaus also refused to carry out the task and was dismissed Finally, Solicitor General ROBERT H BORK, appointed acting attorney general, dismissed Cox

Calls for Nixon’s resignation mounted, and

IMPEACHMENT resolutions were referred to the House Judiciary Committee On March 1, 1974,

a federal GRAND JURY indicted seven former Nixon aides in the continuing cover-up of Watergate Nixon was named as an unindicted coconspirator

Nixon responded to pressure from both those who wanted him to prove himself innocent and those who believed him guilty,

by announcing in April 1974 that he would release to the House Judiciary Committee edited transcripts of conversations regarding Water-gate culled from his library of tape recordings

Though the committee responded that it would need the tapes themselves, Nixon refused to supply them The edited transcripts alone were tremendously damaging The transcripts impli-cated the Nixon White House not only in burglaries and cover-ups, but also illegal wiretaps, corruption of government agencies, domestic

ESPIONAGE, unfair campaign tactics, and abuse

of campaign funds Eventually, 19 Nixon aides and associates served prison terms for their roles in these illegal activities

By late July 1974, the House Judiciary Committee, in televised hearings, was deliberat-ingARTICLES OF IMPEACHMENTagainst Nixon The articles charged him withOBSTRUCTION OF JUSTICE,

ABUSE OF POWER, and defiance of congressional subpoenas It became clear that the full House wouldIMPEACHhim, and he would probably face conviction by the Senate In early August, in response to a Supreme Court ruling (UNITED STATES V.NIXON, 418 U.S 683, 94 S Ct 3090, 41

L Ed 2d 1039 [1974]), Nixon released the contested tape recordings that showed conclu-sively that he had been involved in the effort to halt the Federal Bureau of Investigation’s probe

of Watergate

On August 7, 1974, facing certain impeach-ment, Nixon met with his family and aides and informed SECRETARY OF STATE Kissinger of his decision to resign He made this announcement

to the nation in a television broadcast the evening of August 8 The following day, with his family around him, he bade an emotional farewell to his staff, boarded Air Force One with his wife, and flew home to San Clemente, California Vice President GERALD R FORD was sworn in to serve the remainder of Nixon’s term On September 8, President Ford granted Nixon an unconditional pardon for all federal crimes he“committed or may have committed

or taken part in” while in office, thus ending the crisis that had gripped the nation for more than two years

After his resignation Nixon published eight books and numerous newspaper and magazine articles He traveled again to China, where he was warmly received, and in 1994, shortly before his death, he returned to Russia Nixon came to be considered an elder statesman and political analyst As an expert in foreign policy his advice and counsel were sought by Senator and presidential candidate BOB DOLE and Presi-dentBILL CLINTON

Nixon died April 22, 1994 All five living presidents at the time—Clinton, GEORGE H.W

BUSH, Reagan, JIMMY CARTER, and Ford—and their wives attended Nixon’s funeral Clinton delivered a eulogy in which he said:

He suffered defeats that would have ended most political careers, yet he won stunning

278 NIXON, RICHARD MILHOUS

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victories that many of the world ’s most

popular leaders have failed to attain.

FURTHER READINGS

Ambrose, Stephen E 1989 Nixon: The Triumph of a

Politician, 1962–1972 New York: Simon & Schuster.

——— 1987 Nixon: The Education of a Politician, 1913–

1962 New York: Simon & Schuster.

Brodie, Fawn M 1981 Richard M Nixon: The Shaping of His

Character New York: Norton.

Kutler, Stanley I., ed 1998 Abuse of Power: The New Nixon

Tapes New York: Simon & Schuster.

Mankiewicz, Frank 1973 Perfectly Clear: Nixon from

Whittier to Watergate New York: Quadrangle Books.

Morgan, Iwan 2002 Nixon New York: Oxford Univ Press.

Nixon, Richard M 1990 In the Arena: A Memoir of Victory,

Defeat and Renewal New York: Simon & Schuster.

Nixon, Richard M 1978 R.N.: The Memoirs of Richard

Nixon New York: Grosset & Dunlap.

“Twenty-Five Years after Watergate” (special edition) 2000.

Hastings Law Journal 51 (April).

White, Theodore H 1975 Breach of Faith: The Fall of

Richard Nixon Atheneum Publications.

Wicker, Tom 1991 One of Us: Richard Nixon and the

American Dream New York: Random House.

Wills, Garry 1969 Nixon Agonistes: The Crisis of the

Self-Made Man Boston: Houghton Mifflin.

CROSS REFERENCES

Cold War; Communism; Ervin, Samuel James, Jr.;

Execu-tive Privilege; Independent Counsel; Jaworski, Leon;

Mitchell, John Newton; New York Times Co v United

States; Watergate.

NIXON, UNITED STATES V

In United States v Nixon, 418 U.S 683, 94 S Ct

3090, 41 L Ed 2d 1039 (1974), the U.S.SUPREME

COURT recognized the doctrine of EXECUTIVE

PRIVILEGEbut held that it could not prevent the

disclosure of materials needed for a criminal

prosecution The case arose during the

WATER-GATEpolitical scandal, which involved President

RICHARD M NIXON and numerous members of

his administration The Court had to consider

whether Nixon was required to turn over secret

White House tape recordings to government

prosecutors Nixon claimed that the doctrine of

executive privilege allowed him to refuse to

release the tapes, while prosecutors argued that

they had a right to obtain evidence of possible

crimes, even if that evidence was held by the

PRESIDENT OF THE UNITED STATES

The Watergate scandal began during the

presidential campaign of 1972, in which Nixon

defeated his Democratic opponent, Senator

George McGovern of South Dakota, by a wide

margin Several months before the election, on

June 17, a group of burglars had broken into the

Democratic party campaign headquarters in the Watergate building complex in Washington, D.C Aggressive investigative reporting by the Washington Post uncovered connections to officials in the Nixon administration Though the administration denied any wrongdoing, it soon became clear that members of the admin-istration had tried to cover up the burglary and connections to it that might implicate the president

Under congressional and public pressure, Nixon appointed a specialPROSECUTOR When it was revealed that the president had secretly taped conversations in the Oval Office in the White House, the prosecutor, ARCHIBALD COX, filed aSUBPOENAto secure tapes that he believed were relevant to the criminal investigation

When Cox refused to withdraw his request, Nixon had him fired The resulting public outrage forced Nixon to appoint LEON JAWORSKI

as a new special prosecutor

In March 1974 a federalGRAND JURYindicted seven Nixon associates for CONSPIRACY to ob-struct justice and for other offenses related to the Watergate BURGLARY Nixon himself was named as an unindicted co-conspirator Upon Jaworski’s motion, the U.S district court issued

a new subpoena to the president, requiring him

to produce certain tapes and documents pertaining to precisely identified meetings between the president and others Although Nixon released edited transcripts of some of the subpoenaed conversations, his attorney moved

to quash, or void, the subpoena on the grounds

of executive privilege When the district court denied the motion, the president appealed, and the case was quickly brought to the U.S

Supreme Court

Nixon refused to release the tapes, contend-ing that the doctrine of executive privilege gave him the right to withhold documents from Congress and the courts Executive privilege, though not mentioned in the U.S Constitution, was first asserted by GEORGE WASHINGTON Pre-sidents have argued that the privilege is inherent

in executive power and that it is necessary to maintain the secrecy of information related to national security and to protect the confidenti-ality of their deliberations Executive privilege did not become a major point of contention until the Nixon presidency, however Nixon routinely used it during his first term to thwart congressional inquiries

NIXON, UNITED STATES V 279

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The Supreme Court, in a unanimous deci-sion (Justice WILLIAM H REHNQUIST recused himself because he had served in the Nixon administration), recognized for the first time the general legitimacy of executive privilege

Nevertheless, Chief Justice WARREN E BURGER, writing for the Court, rejected Nixon’s claim of

“an absolute, unqualified Presidential privilege

of IMMUNITY from judicial process under all circumstances.” Burger found that [a]bsent a claim of need to protect military, diplomatic, or sensitive national security secrets,” the need to protect the confidentiality of presidential com-munications must give way to a legitimate request by the courts for information vital to a criminal prosecution Burger noted that the judge would review the subpoenaed tapes in private to determine what portions should be released to the prosecutors This confidential review would prevent sensitive, but irrelevant, information from being disclosed

Nixon obeyed the order and turned the tapes over to the district court When relevant portions were released, they revealed that the president had been intimately involved with the attempt to cover up White House involve-ment in the Watergate burglary Less than three weeks after the Court announced its decision, Nixon resigned the presidency, thereby avoid-ingIMPEACHMENTby Congress

FURTHER READINGS Gray, L Parick, and Gray, Ed 2009 In Nixon’s Web: A Year

in the Crosshairs of Watergate New York: Holt.

Jaworski, Leon 1976 The Right and the Power: The Prosecution of Watergate New York: Reader’s Digest.

Johnsen, Dawn 1999 Executive Privilege since United States

v Nixon: Issues of Motivation and Accommodation.”

Minnesota Law Review 83 (May).

Rozell, Mark J 1999 “Executive Privilege and the Modern Presidents: In Nixon ’s Shadow.” Minnesota Law Review

83 (May).

CROSS REFERENCES Nixon, Richard Milhous; Watergate.

NLRB

SeeNATIONAL LABOR RELATIONS BOARD

NLRB V JONES & LAUGHLIN STEEL CORP

From the 1870s through the mid-1930s the U.S Supreme Court was generally hostile to federal legislation that sought to regulate business through the use of the Constitution’sCOMMERCE

CLAUSE A conservative judiciary believed that the free market should govern economic activities; consequently laws that attempted to regulate labor relations were overturned The Great Depression of the 1930s led to the presidential election in 1932 of FRANKLIN D

ROOSEVELT, who advocated an aggressive role for the federal government in national economic affairs Congress consistently turned Roosevelt’s legislative agenda into law yet the Supreme Court ruled these new laws unconstitutional However, in the landmark case of NLRB v Jones & Laughlin Steel Corp., 301 U.S 1, 57

S Ct 615, 81 L Ed 893 (1937), the Court reversed course, paving the way for NEW DEALlegislation and a new judicial attitude toward the Com-merce Clause

For generations LABOR UNIONS had con-fronted a business community that was hostile

to the concept ofCOLLECTIVE BARGAINING There-fore, the passage of the National Labor Relations Act (NLRA orWAGNER ACT) of 1935 (29 U.S.C.A

§ 151 et seq.) was a dramatic recognition of workers’ rights The law gave workers the right

to organize unions and to require employers to negotiate with a certified union An elaborate administrative process was also established, headed by the National Labor Relations Board (NLRB) The NLRB was create to review complaints about alleged violations of the law and issue administrative sanctions against employers for retaliatory discharges based on union membership or organization activities Employers vowed to test the constitutionality of the NLRA and the actions of the NLRB

In July 1935, 13 employees of the Jones and Laughlin Steel Corporation plant in Aliquippa, Pennsylvania, were discharged for minor infrac-tions of company rules Most of these workers had been actively involved in a union The union filed with the NLRB a charge of UNFAIR LABOR PRACTICES against the steel company, claiming that the discharges were because of union membership At a subsequent NLRB hearing, Jones & Laughlin argued that the NLRA was unconstitutional because it regulated labor relations and not interstate commerce Therefore, Congress had no authority to regu-late labor relations The NLRB rejected the argument and found that the company was the fourth largest steel producer in the United States and was clearly involved in interstate commerce It ordered the workers reinstated and directed Jones & Laughlin to cease and

280 NLRB

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desist from these labor practices Jones &

Laughlin appealed, confident that the Supreme

Court would overturn what was viewed as the

most radical piece of New Deal law

In a stunning reversal of precedent the

Court upheld the constitutionality of the NLRA

on a 5–4 vote Previous decisions striking

down New Deal legislation had also come on

5–4 votes, with Chief Justice CHARLES EVANS

HUGHES joining four conservative justices to

constitute a majority In this case Hughes joined

the four liberal justices and wrote the majority

opinion The tenor of Hughes’ opinion was

significant, for he abandoned Court precedent

that had considered labor relations outside the

stream of interstate commerce The previous

year Hughes had embraced this idea, but in the

present case he looked at the world differently

He concluded that DUE PROCESS and liberty of

contract concerns were irrelevant

The Court’s decision made clear that the

federal government had the constitutional

authority to regulate labor relations Hughes

reasoned that labor strife, including strikes,

affected interstate commerce He stressed that

the Commerce Clause was broad enough to

permit Congress to extend its regulations to

both interstate commerce and to any activity

that affected commerce, directly or indirectly

What was important was the “effect upon

commerce, not the source of the injury.”

The Court concluded that the NLRA went

no further than to “safeguard the right of

employees to self-organization and to select

representatives of their own choosing for

collective bargaining.” This was “a fundamental

right.” This declaration reversed more than

100 years of judicial thinking about labor

unions and endorsed the authority of Congress

to protect this right

This decision was a bitter defeat for the four

conservatives justices:GEORGE SUTHERLAND,PIERCE

BUTLER, WILLIS VAN DEVANTER, and JAMES

MCREY-NOLDS In their dissents they argued that the

NRLA violated the liberty of contract between

an individual employee and an employer

More-over, they held fast to the“stream of commerce”

line of precedent They could not see how the

discharge of a few employees in a city in

Pennsylvania had any connection to the sale and

distribution of steel through the channels of

interstate commerce

Jones changed the face of labor relations by

requiring employers to treat unions and union

workers fairly It also signaled an end to the Supreme Court’s striking down New Deal laws that sought to reshape the national economy

From Jones onward the Court permitted the federal government to take a dominant role in matters of commerce The balance of power between the federal government and state governments shifted dramatically in the years following this decision

This decision also empowered Congress to apply the Commerce Clause to federal civil right legislation TheCIVIL RIGHTS ACT OF1964 contains provisions banning segregated public acmodations that are a part of interstate com-merce Congress used the Commerce Clause as its authority because the Fourteenth Amend-ment’s due process andEQUAL PROTECTIONrights only apply to state and local government actions Therefore, if the state does not mandate segregated facilities, the private discriminatory actions would be exempt from the FOURTEENTH AMENDMENT Therefore, Congress claimed that segregated public accommodations affected interstate commerce The Supreme Court, in Heart of Atlanta Motel, Inc v United States, 379 U.S 241, 85 S Ct 348, 13 L Ed 2d 258 (1964), applied the Jones reasoning It noted that

75 percent of the Heart of Atlanta Motel’s clientele came from out of state and that it was strategically located near several interstate highways Therefore, the business clearly affected interstate commerce The Court upheld the constitutionality of this landmark legislation

FURTHER READINGS

Bibas, Stephanos 2003 “Harmonizing Substantive Criminal

Law Values and Criminal Procedure.” Cornell L.

Rev 88 (July).

Sallus, Marc L and Justin B Gold 2009 “The Viability of

No Contest Clauses in Estate Planning ” Los Angeles

Lawyer 32 (April).

NO FAULT

A kind of automobile insurance providing that

each driver must collect the allowable amount

of money from his or her own insurance carrier

subsequent to an accident, regardless of who

was at fault Two of the most significant effects

of no-fault insurance are avoidance of litigation

(as the right to sue is generally restricted if

below a certain threshold of injury) and efficient

payment of claims Only a minority of the states

have no-fault car insurance laws as of 2009

The adjective no fault is also used in

reference to a type of DIVORCE in which a

marriage can be dissolved on the basis of

irretrievable breakdown or IRRECONCILABLE

DIFFERENCES, without a requirement that either

spouse prove that the other was guilty of any

misconduct causing the end of the marriage

No-fault divorces tend to conclude more quickly

and without a need for public showing of

marital conflict

In LABOR LAW, worker’s compensation

sys-tems are run on a no-fault basis as a result of a

compromise: A worker who has been injured in

the course of a job covered by this scheme, and

who receives worker’s compensation through it,

will relinquish his or her rights to sue an employer,

absentGROSS NEGLIGENCEon the latter’s part

CROSS REFERENCE

Automobiles.

NO FAULT DIVORCE

SeeDIVORCE

NO-LOAD FUND

A type of mutual fund that does not impose sales

commissions, known as “loads,” or “sales loads,”

on its shareholders’ investments, either upon

purchase or sale of the shares (a so-called

front-end or back-front-end load) Such a fund may charge for

administrative and operating expenses, however

The amount of an investor’s capital put into

a no-load mutual fund will be their original

dollar amount, minus the cost of the load

As the U.S Supreme Court observed in U.S

v Cartwright, 411 U.S 546, 551, 93 S.Ct 1713,

1716, 36 L.Ed.2d 528 (1973), “Indeed, as the terms imply, the only real distinction between the two is that one imposes an initial sales charge, and the other does not Nonetheless

a share in a no-load fund is valued at its net asset value, while a share in a load fund is valued

at net asset value plus sales charge.” FURTHER READING

U.S Securities and Exchange Commission Available online

at http://www.sec.gov/rss/your_money/no_load_funds.

htm (accessed Sept 25, 2009).

NOLLE PROSEQUI

[Latin, Will not prosecute.] A legal notice or docket entry indicating that aPLAINTIFF(in a civil lawsuit) or a PROSECUTOR(in a CRIMINAL ACTION) has abandoned the action as to certain defendants, certain issues, or altogether

The doctrine of nolle prosequi plays a role in

DOUBLE JEOPARDY: A dismissal or nolle prosequi before jeopardy attaches does not operate as an

ACQUITTALor prevent further prosecution of the offense

Nolle prosequi is commonly known as nolle pros, nolle, nol pros, nol-pros, or nol-pro

NOLO CONTENDERE

[Latin, I will not contest it.] A plea in a criminal case by which the defendant answers the charges made in the indictment by declining to dispute or admit the fact of his or her guilt

The DEFENDANT who pleads nolo contendere submits for a judgment fixing a fine or sentence the same as if he or she had pleaded guilty

The difference is that a plea of nolo contendere cannot later be used to prove wrongdoing in a civil suit for monetary damages, but a plea of guilty can Nolo contendere is especially popular

in antitrust actions, such as price-fixing cases, where it is very likely that civil actions forTREBLE DAMAGES will be started after the defendant has been successfully prosecuted

A plea of nolo contendere may be entered only with the permission of the court, and the court should accept it only after weighing its effect on the parties, the public, and the admi-nistration of justice

NOLO CONTENDERE 283

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Trifling, token, or slight; not real or substantial;

in name only

Nominal capital, for example, refers to extremely small or negligible funds, the use of which in a particular business is incidental

Nominal consideration describes a situation in which the amount exchanged for something (the“consideration”) is so small that it has no relationship to the value of the thing exchanged for For example, paying one dollar for a house would be nominal consideration; in certain circumstances, such consideration can be valid

NOMINAL DAMAGES

Minimal money damages awarded to an individ-ual in an action where the person has not suffered any substantial injury or loss for which he or she must be compensated

These kinds of damages reflect a legal recognition that a plaintiff’s rights have been violated through a defendant’s breach of duty or wrongful conduct The amount awarded is ordinarily a trifling sum, such as one dollar, which varies according to the circumstances of each case In certain jurisdictions, the amount

of the award might include the costs of the lawsuit

In general, nominal damages may be recovered by a PLAINTIFF who is successful in establishing that he or she has suffered a loss or injury as a result of the defendant’s wrongful conduct but is unable to adequately set forth proof of the nature and extent of the injury

A famous nominal damages case was the one-dollar verdict against the National Football League (NFL) in 1986 The antitrust suit brought by the United States Football League was–despite the trebling (multiplying by three)

of the damages to three dollars–regarded nonetheless as a victory for the NFL

NON

[Latin, Not.] A common prefix used to indicate negation

For example, the term non sequitur means

“it does not follow.”

NON OBSTANTE VEREDICTO

SeeJUDGMENT NOTWITHSTANDING THE VERDICT

NON PROSEQUITUR

[Latin, He does not pursue, or follow up.] The name of a judgment rendered by a court against

a plaintiff because he or she fails to take any necessary steps, in legal proceedings, within a period prescribed for such proceedings by the practice of court

When a judgment of non prosequitur is entered against thePLAINTIFF, it means he or she has failed to properly pursue the lawsuit in

a timely way and cannot subsequently obtain

a judgment against the DEFENDANT However, a delay alone is not enough upon which to base a non pros; it must also appear that the defendant was prejudiced by the delay A delay will be deemed to be prejudicial if, during the period

of delay, there occurs the death or absence of parties or witnesses A failure of this kind would result in a dismissal of the action or in aDEFAULT JUDGMENTin favor of the defendant

NON SUI JURIS

[Latin, Not his own master.] A term applied to

an individual who lacks the legal capacity to act

on his or her own behalf, such as an infant or an insane person

For example, the law says that a child may

be of such tender years that he or she lacks the experience necessary to realize the presence of danger, or lacks the judgment required to avoid danger Such a child is incapable of personal

NEGLIGENCE and is thus“non sui juris.”

NON VULT CONTENDERE

[Latin, He does not wish to contest it.] A type

of plea that can be entered by a defendant who is unwilling to admit guilt but is willing to submit

to the court for sentencing

The term, sometimes abbreviated non vult,

is a variation of nolo contendere, which has the same meaning In both cases the DEFENDANT

submits to a judgment that fixes a fine or a sentence just as if he or she had pleaded guilty The difference is that pleas of non vult contendere and nolo contendere cannot later be used to prove wrongdoing in a civil suit for monetary damages, but a plea of guilty can

NONAGE

Infancy or minority; lack of requisite legal age

284 NOMINAL

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Nonage entails various contractual

disabil-ities and is a ground for ANNULMENT in some

jurisdictions

CROSS REFERENCE

Infants.

NONCOMPETE AGREEMENT

A noncompete agreement is a contract limiting

a party from competing with a business after

termination of employment or completion of a

business sale

Found in some business contracts,

non-compete agreements are designed to protect a

business owner’s investment by restricting

potential competition Generally, businesses

pursue these agreements in two instances: when

hiring new employees and when purchasing an

established business The noncompete

agree-ment is a form ofRESTRICTIVE COVENANT, a clause

that adds limitations to the employment or sale

contract These agreements protect the business

by restricting the other party from performing

similar work for a specific period of time within

a certain geographical area First used in the

nineteenth century, and common in the early

2000s in certain professions, noncompete

agreements sometimes have an uncertain legal

status Courts do not always uphold them

Generally, courts evaluate such clauses for their

reasonableness to determine whether they

constitute an unfair restraint on trade

The motive behind noncompete agreements

is driven by an employer’s self-interest

Typi-cally, companies invest heavily in the training of

their employees Similarly, they have an interest

in protecting their customer base, trade secrets,

and other information vital to their success The

noncompete agreement is a form of protection

against losses The company does not wish to

invest in an employee only to see the employee

take the skills acquired, or the company’s

customers, to another employer Thus, when

hiring a new employee, the company may make

the person sign a noncompete agreement as part

of a condition of employment Likewise, the

prospective purchaser of an established business

may only buy it if the current owner is willing to

sign a noncompete agreement

In practice, such agreements are very

specific in several respects Usually the

agree-ment will define a length of time, geographic

radius in miles, and type of activity in which the

employee promises to refrain from working after leaving the present job This is often the case in businesses that depend on an established group of customers A hair salon, for example, may require its stylists to agree not to compete against it in neighboring hair salons Noncom-pete agreements are also well established in fields where an individual is associated with a product or service High-profile positions in the media typically require them A television anchorwoman, for example, will typically be contractually bound not to work for a compet-ing news channel in the same market for a period of time following the termination of her contract

In legal challenges courts use a standard of reasonableness in deciding whether to uphold a noncompete agreement Most states use a three-part test: The agreement must be reasonable in terms of length of time, size of geographical territory included, and the business’s necessity for the agreement Covenants restricting the sellers of businesses typically receive a lower level

of scrutiny, whereas restrictions on the behavior

of former employees are closely scrutinized

Courts are primarily concerned with pre-venting unfair restraints on trade In a free market, most businesses cannot reasonably assert

a need to restrict competition Many states will evaluate each separate part of an agreement using the so-called blue pencil doctrine of severability, under which certain parts of the agreement can

be upheld as enforceable and others can be found unenforceable A few states, however, throw out an entire agreement if any part of it

is found to be an unfair restraint on trade

FURTHER READING Covington, Robert, and Kurt Decker 2002 Employment Law in a Nutshell 2d ed St Paul, MN: West Group.

CROSS REFERENCES Covenant; Restraint of Trade.

NONCONFORMING USE

Continuing use of real property, permitted by zoning ordinances, in a manner in which other similar plots of land in the same area cannot ordinarily be used

Most municipal governments have enacted zoning ordinances that regulate the develop-ment of REAL ESTATE within the municipality

The municipality is divided into zoning districts

NONCONFORMING USE 285

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that permit a particular use of property:

residence, business, or industry Within these three main types of zoning districts, population density and building height may also be restricted

Zoning attempts to conserve the value of property and to encourage the most appropriate use of land throughout a particular locality

When zoning is established, however, the ordinance cannot eliminate structures already

in existence Thus, if a district is zoned as residential, the corner grocery store and neigh-borhood service station become nonconform-ing use sites These businesses may remain even though they do not fit the predominant classifi-cation of real property in the zoning district

As long as the property that has noncon-forming use status does not change, its status

is protected Problems arise, however, when change occurs In general, substantial alterations

in the nature of the business, new equipment that is not a replacement but a subterfuge to expand the use of the property, or a new structure amount to illegal expansion or exten-sion These types of actions can result in the loss

of the nonconforming use status and the closing

of the business For example, if the corner grocery builds an addition to house a restaurant, that would be a significant change If, however, the grocery updates its refrigeration equipment, that would not be an illegal change

If a nonconforming use structure is des-troyed or partially desdes-troyed by fire or similar occurrences, zoning ordinances generally pro-vide that if it is destroyed beyond a certain percentage, it cannot be rebuilt Usually the owner loses the right to rebuild if 50 percent or more of the structure is damaged

If a business stops operating at the non-conforming use site, zoning ordinances gener-ally classify this as a discontinuance and revoke the nonconforming use status The owner of the business must intend to abandon the use

Discontinuance due to repairs, acts of war or nature, government controls,FORECLOSURE, con-demnation, or injunctions are not regarded as manifesting intent to abandon the nonconform-ing use status if the situation is beyond the business owner’s control

Another tool to end nonconforming use situations is AMORTIZATION, where the noncon-forming use of a structure must cease within

a zoning district at the end of the structure’s estimated useful economic life This device

often is used in connection with billboards and junkyards Though municipalities may seek to end nonconforming use status through these various approaches, landowners usually retain this status until it becomes economically undesirable

In the case of Save Diamond Head Waters LLC v Hans Hedemann Surf, Inc., 119 Haw 452 (December 19, 2008), which involved noncon-forming uses, the underlying points of law were that nonconforming uses can be changed, but they cannot be expanded Furthermore, an accessory use must be secondary to the allowed primary use The surf school in this case was allowed to continue operating because it was not

an accessory use but a changed nonconforming use Additionally, it did not draw its students or customers primarily from the hotel in which it was located, and there had been no physical expansion to any of the buildings on the site

to accommodate the surf school establishment Hans Hedemann Surf, Inc operated Hans Hedemann Surf School on the ground floor of the New Otani Kaimana Beach Hotel, located in Honolulu, Hawaii The hotel was built in 1950 and expanded in 1962 When it was built, the zoning at the site allowed commercial uses other than businesses that primarily served the tenants of the buildings in which they were located, known as“accessory uses.” The current zoning at the site is A-2 Medium Density Apartment District designation, and hotel and accessory uses are not permitted in A-2 districts However, because hotel use was acceptable at the time of the hotel’s construction, and the hotel continued to be used as a hotel, the hotel use survived as a nonconforming use

CROSS REFERENCES Land-Use Control; Zoning.

NONFEASANCE

The intentional failure to discharge a required duty

or obligation

Nonfeasance is a term used in TORT LAW to describe inaction that allows or results in harm

to a person or to property An act of nonfea-sance can result in liability if (1) the actor owed

a duty of care toward the injured person, (2) the actor failed to act on that duty, and (3) the failure to act resulted in injury

Originally, the failure to take affirmative steps to prevent harm did not create liability,

286 NONFEASANCE

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and this rule was absolute Over the years, courts

have recognized a number of situations in

which a person who does not create a dangerous

situation must nevertheless act in order to

prevent harm

Generally, a person will not be held liable

for a failure to act unless he or she had a

pre-existing relationship with the injured person

For example, if a bystander sees a stranger

drowning and does not attempt a rescue, he

cannot be liable for nonfeasance because he had

no pre-existing relationship with the drowning

person The bystander would not be liable for

the drowning, even if a rescue would have posed

no risk to him

However, if the victim is drowning in a

public pool, and the bystander is a lifeguard

employed by the city, and if the lifeguard does

not act to help, she may be held liable for the

drowning because the lifeguard’s employment

places her in a relationship with swimmers in

the pool Because of this relationship, the

lifeguard owes a duty to take affirmative steps

to prevent harm to the swimmers

Courts have found a pre-existing

relation-ship and a duty to act in various relationrelation-ships,

such as the relationships between HUSBAND AND

WIFE; innkeeper and guest; employer and

em-ployee; jailer and prisoner; carrier and passenger;

parent and child; school and pupil; and host and

guest A person who renders aid or protection

to a stranger also may be found liable if the

rescuer does not act reasonably and leaves the

stranger in a more dangerous position, even if

the rescuer had nothing to do with the initial

cause of the stranger’s dilemma

Courts have found a duty to act if a person

does something innocuous that later poses a

threat, and then fails to act to prevent harm For

example, assume that Johnny loans a powerful

circular saw to Bobby If Johnny later

remem-bers that the bolt securing the blade is loose

and that the blade will dislodge in a dangerous

manner when the saw is used, Johnny must try

to warn Bobby If Bobby is injured because

Johnny failed to act, Johnny can be held liable

for nonfeasance

In the case of government officials, the

courts have not extended liability for inaction

The SUPREME COURT, in DeShaney v Winnebago

County, 489 U.S 189; 109 S Ct 998; 103 L Ed

2d 249 (1989), ruled that a county welfare

agency could not be liable for the death of an

abused child because government had no affirmative duty under the FOURTEENTH AMEND-MENTto protect the child The Court stated that

“The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent

to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.” If a person is imprisoned or institu-tionalized, or otherwise has her liberty re-strained by the state, then nonfeasance can be

a CAUSE OF ACTION

In theory, nonfeasance is distinct from misfeasance and malfeasance Malfeasance is any act that is illegal or wrongful Misfeasance is

an act that is legal but improperly performed

Nonfeasance, by contrast, is a failure to act that results in harm

In practice, the distinctions among the three terms are nebulous and difficult to apply

Courts in various jurisdictions have crafted different rules relating to the terms The most difficult issue that faces courts is whether to imply a duty to act and find liability for the failure to act

Originally, courts used the term “nonfea-sance” to describe a failure to act that did not give rise to liability for injuries The meaning of the term reversed direction over time, and most courts now use it to describe inaction that creates liability

FURTHER READINGS Kionka, Edward J 2005 Torts in a Nutshell 4th ed St Paul, Minn.: West Group.

Rowe, Jean Elting, and Theodore Silver 1995 “The Jurisprudence of Action and Inaction in the Law of Tort: Solving the Puzzle of Nonfeasance and Misfeasance from the Fifteenth through the Twentieth Centuries ” Duquesne Law Review 33 (summer).

CROSS REFERENCE Good Samaritan Doctrine.

NONPROFIT

A corporation or an association that conducts business for the benefit of the general public without shareholders and without a profit motive

Nonprofits are also called not-for-profit corporations Nonprofit corporations are cre-ated according to state law Like for-profit corporations, nonprofit corporations must file

a statement of corporate purpose with the

SECRETARY OF STATE and pay a fee, create articles

NONPROFIT 287

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