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

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 special PROSECUTOR ARCHI- BALD COX , Nixon ordered Attorney General ELLIOT L. RICHARDSON to 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 mou nted, 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 co ver-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- ing ARTICLES OF IMPEACHMENT against Nixon. The articles charged him with OBSTRUCTION OF JUSTICE, ABUSE OF POWER, and defiance of congressional subpoenas. It became clear that the full House would IMPEACH him, 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 resignatio n 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 retur ned 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- dent BILL 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 278 NIXON, RICHARD MILHOUS 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 PRIVILEGE but held that it could not prevent the disclosure of materials needed for a criminal prosecution. The case arose during the WATER- GATE political scandal, which involved President RICHARD M. NIXON and numerous members of his administration. The Court had to consid er 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 rep orting 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 special PROSECUTOR. When it was revealed that the president had secretly taped conversations in the Oval Office in the White House, the prosecutor, ARCHIBALD COX, filed a SUBPOENA to 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 federal GRAND JURY indicted 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 nec essary 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NIXON, UNITED STATES V. 279 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 fo r information vital to a criminal prosecution. Burger noted that the judge would review the subpoenaed tapes in private to determine what portio ns should be released to the prosecutors. This confidential review would prevent sensitive, but irrelev ant, 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- ing IMPEACHMENT by 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 See NATIONAL 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’s COMMERCE 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 DEAL legislation 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 of COLLECTIVE BARGAINING. There- fore, the passage of the National Labor Relations Act (NLRA or WAGNER 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 280 NLRB desist from these labor practices. Jones & Laughlin appealed, co nfident 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 fundam ental 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 emplo yers 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. The CIVIL RIGHTS ACT OF 1964 contains provisions banning segregated public accom- modations that are a part of intersta t e com- merce. Congress used the Commerc e Clause as its authority because the Fourteenth Amend- ment’s due process and EQUAL PROTECTION rights 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 “April 12, 1937: Labor Relations Act Upheld.” 2009. Today in Legal History. Available online at http://www. justicelearning.org/todayinlaw/today.aspx?dMM=4& dDD=12; website home page: http://www.justicelearning. org (accessed September 7, 2009). Dorf, Michael C. 2004. Constitutional Law Stories. Westbury, NY: Foundation. Hardin, Patrick, et al., eds. 2002. The Developing Labor Law: The Board, the Courts, and the National Labor Relations Act. 4th ed. Washington, D.C.: Bureau of National Affairs. NO BILL A term that the foreman of the GRAND JURY writes across the face of a bill of indictment (a document drawn up by a prosecutor that states formal criminal charges against a designated individual) to indicate that the criminal charges alleged therein against a suspect have not been sufficiently GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NO BILL 281 supported by the evidence presented before it to warrant his or her criminal prosecution. When the grand jury agrees that the evidence is sufficient to establish the commis- sion of a crime, it returns an indictment endorsed by the grand jury foreman with the phrase true bill to indicate that the information presented before it is sufficient to justify the trial of the suspect. NO CONTEST The English translation of a nolo contendere plea used in criminal cases. Generally the terms nolo contendere and no contest are used interchange- ably in the legal community. The operation of a no-contest plea is similar to a plea of guilty. A defendant who enters a no contest plea concedes the charges alleged without disputing or admitting guilt and without offering a defense. No contest has a different meaning in the context of a will. The modern no-contest plea originated during the reign of Henry IV in England in the early 1400s. It was considered a prisoner’s implied confession. In cases where a death sentence was not a possibility, a prisoner was allowed simply to ask the court for mercy rather than contest the issue of guilt or inno cence. Today, the no-contest plea is defined by statute and is available in almost every state. Such a plea is considered a privilege and not an automatic right of a DEFENDANT. Consequently, a no-contest plea is accepted only with the consent of the court, and a judge is vested with discretion to accept or reject the plea. A plea of no contest usually is not allowed in death penalty cases. The court must address several proc edural concerns before accepting a no-contest plea. If it appears from the facts presented that the defendant did not commit the offense charged, the trial court will refuse a no-contest plea. Generally, a defendant must also tender a no-contest plea knowingly and voluntarily. A plea is not deemed knowing and voluntary unless the defendant has a full understanding of the charges alleged and the legal ramifications of PLEADING no contest. To ensure that the plea is freely tendered, the court will also inquire whether the defendant has received any threats or promises. The adherence to these standards varies among courts and jurisdictions. Some courts operate under the assumption that a no-contest plea should be accepted in the absence of some reason to the contrary, whereas others require the defendant to strictly observe every legal requirement before they will accept the plea. A plea of no contest is advantageous for defendants where the effects of a plea of guilty are too harsh. For example, a defendant might choose to enter a no-contest plea to avoid the expense and publicity of a trial. A defendant may also chose to enter a no contest plea in order to avoid the stigma associated with pleading guilty to a crime. The no- contest plea is also considered to be a tool of convenienc e for defense attorneys, allowing them to reach a plea bargain in a case in which a defendant insists that he is not guilty, but is willing to enter a plea of no contest to save time and money. Another procedural advantage of a no-contest plea is that it cannot be used against the accused in any civil suit for the same act. For example, if a motorist pleads no contest to a criminal ASSAULT charge against a hitchhiker, the hitch- hiker cannot introduce evidence of that plea in a related civil proceeding for assau lt to IMPEACH the motorist’s credibility. One disadvantage of a no-contest plea is that it carries the same legal effect as a conviction for sentencing purposes. Though a defendant may hope for leniency during sentencing for saving the court the time and costs of a trial or because of a bargain worked out with the prosecutors, the full range of penalties remain available to the court for the given crime. Thus, a defendant risks receiving the same punishment without the opportunity to offer a defense or a chance for an ACQUITTAL by a jury. A second meaning of no contest relates to wills and the intentions of the testator. A no- contest provision in a will, also known as an in terrorem clause, provides that the gift or deviseisgivenontheconditionthatnolegal action is taken to challenge the will. If a l egal challenge to the will is pursued, the no-contest provision provides that the person bringing the action forfeits the gift or devise. The purpose o f no-contest clauses is to carry out the express wishes of the testator and to discourage LITIGATION. Nonetheless, many courts refuse to enforce a n o-contest clause if the challen ge is brought in GOOD FAITH and on PROBABLE CAUSE. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 282 NO CONTEST 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 autom obile 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, absent GROSS NEGLIGENCE on the latter’spart. CROSS REFERENCE Automobiles. NO FAULT DIVORCE See DIVORCE. 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-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 a PLAINTIFF (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 ACQUITTAL or 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 for TREBLE 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NOLO CONTENDERE 283 NOMINAL 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 ag ainst the National Football League (NFL) in 1986. The antitrust suit brought by the United State s 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 See JUDGMENT 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 the PLAINTIFF, it me ans 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 a DEFAULT JUDGMENT in 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 284 NOMINAL 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 contract s, 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 of RESTRICTIVE 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 geograp hical area. First used in the nineteenth century, and commo n 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 REFE RENCES Covenant; Restraint of Trade. NONCONFORMING USE Continuing use of real property, permitted by zoning ordi nances, 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NONCONFORMING USE 285 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. Thu s, 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 destroyed 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, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 286 NONFEASANCE 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 examp le, 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 relationships, 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,inDeShaney 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- MENT to 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 imp risoned 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 malfeasanc e. 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 REFE RENCE 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NONPROFIT 287 . ended most political careers, yet he won stunning GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 278 NIXON, RICHARD MILHOUS victories that many of the world’s most popular leaders have failed. develop- ment of REAL ESTATE within the municipality. The municipality is divided into zoning districts GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NONCONFORMING USE 285 that permit a particular use of. purpose with the SECRETARY OF STATE and pay a fee, create articles GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NONPROFIT 2 87