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

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 ATTACKS on the United States, President GEORGE W . BUSH used 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 the HOMELAND SECURITY DEPARTMENT by 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 President BARACK OBAMA called 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 Procedu re; 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, presi dents 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, executive, 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 JEFFERSON described the deliberations in his diary. The participants, Jefferson wrote, concluded that Congress had the right to request information GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EXECUTIVE PRIVILEGE 299 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 corresponde nce 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 BURR was indicted on charges of TREASON, 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 300 EXECUTIVE PRIVILEGE 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 pre sidency 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 Senator JOSEPH R. MCCARTHY, President Eisenhower directed that executiv e 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 presiden t, 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 of ficials under Presidents WILLIAM JEFFERSON CLINTON and GEO RGE 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EXECUTIVE PRIVILEGE 301 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, orthe 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 co nstitutional 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 investi gation 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 302 EXECUTIVE PRIVILEGE 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 regard ing corruption investigations of Democratic politicians, actions that may have constituted OBSTRUCTION OF JUSTICE and 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 contemp t of Congress for failure to appear before the House Judiciary Committee. The SENATE JUDICIA- RY COMMITTEE likewise 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 General MICHAEL MUKASEY declared 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EXECUTORS AND ADMINISTRATORS 303 assigned to personal representatives of the decedent. A PERSONAL 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 as OFFICERS OF THE COURT because 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 grant LETTERS TESTAMENTARY to 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’sestateis 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 a REASONABLE TIME fo llowing 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 estat e. 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 pruden t 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 leg ally 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 of DESCENT 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 dut ies. The taking of the oath constitutes acceptance of the office. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 304 EXECUTORS AND ADMINISTRATORS 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 fo rfeited if the representative is found to have deliberately mismanaged the estate. The authority of an execut or 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 w ithin 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 ju st called to ask if you will serve as executor for her e state 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 admin istrator. The most potentially damaging risk is liability for a ctions 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. n You approve a coexecutor’s or coadminis- trator’s breach of duty. Fortunately, you can usually avoid these pro- blems by t aking a few simple steps: n Most important of all, stay in touch with the estate’s beneficiaries. Keep them informed of your actions and the general condition of the estate. n Promptly meet all required deadlines. n Maintain accurate records of all estate transactions and document all decisions made. Keep receipts of distributions made to beneficiaries. n Obtain the written consent of all beneficiaries when changing estate investments. n Obtain a court order from the probate court for significant estate transactions. Petition the court if the will is unclear regarding particular items. n Keep affairs of the estate confidential. n Avoid conflicts of interest. Do not put your own interests ahead of the interests of the estate’s beneficiaries, and do not use assets oftheestateforyourowngainorprofit. By using common sense and foll owing these guidelines, you can effectively settle an estate and avoid potential lawsuits. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EXECUTORS AND ADMINISTRATORS 305 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 admini strators 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 du plicate is also referred to as an exemplified copy or a CERTIFIED 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 of SEPARATION OF POWERS dictates 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 a CIVIL RIGHTS action 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 306 EXECUTORY 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 co urt, 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 arm ed 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 wher e administrative remedies are inadequate or would cause irreparable harm. In a case involving a claim of WRONGFUL 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]). FURTHER READINGS Donnellan, Rebecca L. 2001. “The Exhaustion Doctrine Should Not Be a Doctrine with Exceptions.” West Virginia Law Review 103 (spring). Funk, William. 2000. “Exhaustion of Administrative Remedies—New Dimensions since Darby.” Pace Envi- ronmental Law Review 18 (winter). Rapp, Geoffrey Christopher. 2001. “Low Riding.” Yale Law Journal (April 1) 110. CROSS REFERENCE Administrative Law and Procedure. EXHIBIT As a verb, to show or display; to offer or present for inspection. To produce anything in public, so that it may be taken into possession. To present; to offer publicly or officially; to file of record. To administer; to cause to be taken, as medicines. To submit to a court or officer in the course of proceedings. As a noun, a paper or docum ent produced and exhibited to a court during a trial or hearing, or to a person taking depositions, or to auditors or arbitrators as a voucher, or in proof of facts, or as otherwise connected with the subject matter, and which, on being accepted, is marked for i dentifi- cation and annexed to the deposition, report, or other principal document, or filed of record, or otherwise made a part of the case. A paper, document, char t, map, or the like, referred to and made a part of an affidavit, pleading, or brief. An item of physical, tangible evidence that is to be or has been offered to the court for inspection. EXONERATION The removal of a burden, charge, responsibility, duty, or blame imposed by law. The right of a party who is secondarily liable for a debt, such as a surety, to be reimbursed by the party with primary liability for payment of an obligation that should have been paid by the first party. EXPATRIATION The voluntary act of abandoning or renouncing one’s country and becoming the citizen or subject of another. EXPECTANCY A mere hope, based upon no direct provision, promise, or trust. An expectancy is the possibility of receiving a thing, rather than having a vested interest in it. The term has been applied to situations where an individual hopes and expects to receive something, generally property or money, This .22-caliber revolver used by John Hinckley in his assassination attempt against President Ronald Reagan was submitted as evidence in Hinckley’s 1982 trial. An exhibit is tangible evidence submitted to a court for inspection during the course of trial proceedings. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION EXPECTANCY 307 but has no founded assurance of possession. A person named in a will as an heir has only an expectancy to inherit under the will, since there exists a possibility that the will may be altered so as to disinherit him or her. EXPERT TESTIMONY Testimony about a scientific, technical, or profes- sional issue given by a person qualified to testify because of familiarity with the subject or special training in the field. Generally speaking, the law of evidence in both civil and criminal cases confines the testimony of witnesses to statements of concrete facts within their own observation, knowledge, and recollection. Testimony must normally state facts perceived by the witnesses’ use of their own senses, as distinguished from their opinions, inferences, impressions, and conclu- sions drawn from the facts. Opinion testimony that is based on facts is usually considered incompetent and inadmissible, if the factfinders are as well qualified as the witness to draw conclusions from the facts. In certain instances, however, the law allows witnesses to provide OPINION EVIDENCE, and such evidence is divided into two classes, lay opinion and expert opinion. A lay witness may give his or her opini on when that opinion is (1) rationally based on the perception of the witness; (2) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue; and (3) not based on scientific, technical, or other specialized knowledge within the scope of expert testimony discussed below. Thus, lay witnesses who have had an opportu- nity to observe a particular vehicle in motion are normally permitted to testify that it was traveling at a great rate of speed or was going pretty fast. Lay witnesses are also normally allowed to give their opinion as to the height, weight, quantity, and dimensions of things, even if their testimony is not precise. By definition, a lay witness is any witness who is not qualified to testify as an expert on a particular subject. Expert witnesses are persons who are qualified, either by actual experience or by careful study, to form definite opinions with respect to a division of science, a branch of art, or a department of trade. The law deems persons having no such experience or training to be incapable of forming accurate opinions or drawing correct conclusions. Thus, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149-152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the U.S. Supreme Court further observed that the reliability of a scientific technique may turn on whether the technique can be and has been tested; whether it has been subjected to peer review and publica- tion; and whether there is a high rate of error or standards controlling its operation. Courts do not apply a rigid rule in determin- ing whether a particular witness is qualified to testify as an expert. Instead, an expert’s qualifica- tions are normally evaluated on a witness-by- witness basis, according to the facts and issues of each case. Several courts have stated that the true criterion in determining the qualification of expert witnesses is not whether they employ their knowledge and skill professionally or commer- cially, but whether the jury can receive appreci- able help from them on the particular subject in issue. Many courts also require the witness to exhibit sufficient knowledge of the subject matter before his or her opinion to go to the jury. The qualifications of an expert witness must be carefully scrutinized by courts to guard against charlatans who may give erroneous testimony without a sound foundation. Most courts will more closely scrutinize the qualifica- tions of witnesses seeking to testify as exper ts if they have never been found qualified to give expert testimony on a prior occasion. However, primary reliance is not placed on the fact that it may be the expert’s first time on the WITNESS STAND . Conversely, the fact that a witness has been previously qualified to give expert testi- mony on the subject matter in question is typically irrelevant to his or her qualifications for giving such testimony in a subsequent case. There are two general classes of matters as to which expert testimony is admissible: (1) matters as to which the conclusions to be drawn by the jury depend on the existence of facts that GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 308 EXPERT TESTIMONY . 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EXECUTORS. acceptance of the office. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 3 04 EXECUTORS AND ADMINISTRATORS In some jurisdictions, statutes require the executor or administrator of an estate to. in federal court. In Patsy v. Board of Regents, 45 7 U.S. 49 6, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982), the Supreme Court held that the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 306 EXECUTORY plaintiff—who