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decided: December 8, 1969.
NORMAN F. DACEY AND NORMAN F. DACEY, DOING BUSINESS AS NATIONAL ESTATE PLANNING COUNCIL, APPELLANTS,v.NEW YORK COUNTY LAWYERS' ASSOCIATION, APPELLEE
Waterman, Moore and Kaufman, Circuit Judges. Waterman, Circuit Judge (concurring). Moore, Circuit Judge (concurring in the result).
IRVING R. KAUFMAN, Circuit Judge:
The orderly functioning of our judicial system and the protection of our citizens require that legal advice should be offered only by those who possess the requisite qualifications and authorization for the practice of law. At the same time, one of the most fundamental principles of our system of government prohibits any restraint on a citizen's right to disseminate his views on important public issues. In this case, we are called upon to resolve a conflict between these two important interests. Judge Wyatt's principal ground for dismissing the complaint was that the doctrine of immunity was an absolute bar to this litigation. We must therefore determine whether a bar association has immunity in a civil action arising out of its attempt to restrict the distribution of a book in the exercise of its statutory power to initiate prosecutions for the unauthorized practice of law.*fn1
I. Facts
Plaintiff Norman Dacey, who is not an attorney, published a book bearing the title How To Avoid Probate ! The book was highly successful. It enjoyed a long run on the best-seller list and a sale of more than 750,000 copies. How To Avoid Probate ! begins with a five-page critique of the probate court system and of the lawyers who maintain and tolerate its continued existence. The criticism consists mostly of quotations from academics or the popular press and of anecdotes concerning individuals whose experiences with the probate system have been particularly unsatisfactory. Dacey sets forth illustrations of conflicts of interest on the part of probate judges and probate attorneys, of exorbitant fees charged by special guardians and court-appointed appraisers.
Having made his case that "probate" should be avoided, Dacey goes on to suggest that it is possible, indeed, easy to do so. In a few pages, he characterizes the revocable inter vivos trust as "a legal wonder drug," "a magic key to probate exemption." The remainder of the book's 360 pages consists largely of forms for trusts and wills, all of which are provided in duplicate, and accompanying instructions for their use.*fn2 The implicit suggestion is that through the use of these forms an individual may preserve almost all of his property from what Dacey views as the ravages of the probate system.
In January 1967, acting under authority conferred upon it by § 750, subd. B of New York Judiciary Law, McKinney's Consol.Laws, c. 30,*fn3 the defendant New York County Lawyers' Association instituted a proceeding to have Dacey, his publisher, and two booksellers adjudged in criminal contempt for the unauthorized practice of law and to have the sale and distribution of How To Avoid Probate ! enjoined.*fn4 After a hearing, a Special Term of the New York Supreme Court refused to hold the publisher and booksellers in contempt but did adjudge Dacey in contempt and enjoin the sale and distribution of his book. New York County Lawyers' Ass'n v. Dacey, 54 Misc.2d 564, 282 N.Y.S.2d 985 (Sup.Ct.1967). Two months after the decision of the New York Supreme Court, Dacey brought this action under the Civil Rights Act of 1871, 42 U.S.C. § 1983, alleging that the commencement by the Association of criminal contempt proceedings for the unauthorized practice of law deprived him of his first amendment right to free speech, and requested that the Association be enjoined from further prosecution of the state court proceeding. Judge McLean denied Dacey's motion for a preliminary injunction, finding neither irreparable injury nor a strong probability that Dacey would prevail at trial.
Meanwhile Dacey had been pursuing his state court appeals from the decision of the New York Supreme Court. He was unsuccessful in the Appellate Division, which in October 1967 upheld the Supreme Court in a four-to-one decision, Justice Stevens dissenting. New York County Lawyers' Ass'n v. Dacey, 28 A.D.2d 161, 283 N.Y.S.2d 984 (1967). Two months later, however, the New York Court of Appeals reversed, one justice dissenting, on the reasoning of Justice Stevens' dissenting opinion in the Appellate Division. New York County Lawyers' Ass'n v. Dacey, 21 N.Y.2d 694, 287 N.Y.S.2d 422, 234 N.E.2d 459 (1967). In concluding that the sale and distribution of How To Avoid Probate ! did not constitute the unauthorized practice of law, Justice Stevens had emphasized that the book was sold to the public at large and that no relationship of personal trust and confidence arose between Dacey and the purchasers of his book.
Fortified by his victory in the New York Court of Appeals, Dacey pressed forward vigorously in his federal court action. In an amended complaint he abandoned his now unnecessary request for a permanent injunction and substituted a demand for $1,500,000 in compensatory damages and $4,500,000 in punitive damages. He also sought to restrain the Association from cooperating with any other organization in an attempt to prevent the distribution of his book on the Association's asserted ground that it constituted the unauthorized practice of law. On October 9, 1968, however, Judge Wyatt granted the Association's motion, pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure, to dismiss Dacey's amended complaint for failure to state a claim on which relief could be granted. Judge Wyatt concluded that immunity from suit shielded the Association from Dacey's claim for damages. He reasoned that because the Association was performing a prosecutorial function conferred upon it by statute in initiating the contempt proceedings for unauthorized practice against Dacey, it should occupy the same immune status accorded by law to a government prosecutor. Moreover, the district judge held that the Association could avail itself of the defense of "probable cause" and that the grant of a final injunction by the New York Supreme Court and affirmance by the Appellate Division, despite the ultimate reversal by the Court of Appeals, established probable cause for the Association's actions as a matter of law.
It should be emphasized at this juncture that we are not here concerned with the merits of this action. As this is an appeal from an order granting a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, we are concerned only with the factual allegations of the complaint, and these we must accept as true. Murray v. City of Milford, 380 F.2d 468 (2d Cir. 1967); see Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S. Ct. 347, 15 L. Ed. 2d 247 (1965); 2A J.W. Moore, Federal Practice para. 12.08, at 2266-67 & n. 3 (2d Ed. 1968). Accordingly, although the Association apparently never attempted to enforce its injunction against Dacey during the pendency of his appeals, we must assume the validity of Dacey's allegations that the mere existence of the injunction had prevented reprinting, distribution and sale of his book and inhibited the expression of the views he was espousing.
II. Immunity
At common law, judges could not be held liable in a civil action for acts they performed in the exercise of their judicial functions. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L. Ed. 646 (1871). The only exception to this strongly rooted rule of judicial immunity arose when a judge took action in cases over which his court clearly lacked subject-matter jurisdiction. Otherwise, it mattered little that his decision was egregiously wrong or that his motives were black. In Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926), aff'd per curiam, 275 U.S. 503, 48 S. Ct. 155, 72 L. Ed. 395 (1927), we extended the doctrine of immunity to shield a Special Assistant to the Attorney General of the United States from an action for malicious prosecution. Goff, the Special Assistant, was alleged to have secured appointment as a prosecutor in order to further his malicious design to indict and punish the plaintiff. The absolute immunity we granted to public prosecutors in that case was based on what we believed to be sound considerations of public policy. "Persons occupying such important positions and so closely identified with the judicial departments of the government," Judge Rogers reasoned, "should speak and act fearlessly in the discharge of their important official functions." "They should be no more liable," he continued, "to private suits for what they say and do in the discharge of their duties than are the judges and jurors, to say nothing of the witnesses who testify in a case." 12 F.2d at 406.
Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, which creates liability for the deprivation of rights under color of law and upon which Dacey bases his action, did not abolish the settled principle of judicial immunity. The Supreme Court has clearly instructed that, in the absence of a specific congressional rejection of the doctrine, the immunity of judges for acts within the judicial role must be considered to have survived the enactment of the Civil Rights Act. Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967). More recently, this court again gave its approval to the extension of the immunity granted to judges, to encompass prosecutors. Fanale v. Sheehy, 385 F.2d 866 (2d Cir. 1967). A public prosecutor thus possesses the same immunity in an action which seeks to hold him personally liable for official acts under § 1983 as he does to a similar action for malicious prosecution.*fn5
III. The Prosecutorial Role of the Association
We are of the view that when the Association instituted its proceedings against Dacey, its role was analogous to that of a public prosecutor.*fn6 But this is not the end of our inquiry. Chief Judge Learned Hand concluded that the decision to grant immunity to public prosecutors arose from "a balance between the evils inevitable in either alternative." Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S. Ct. 803, 94 L. Ed. 1363 (1950). To decide whether immunity should be extended to a private association performing a prosecutorial function we must strike a similar balance between the interests involved. In analyzing these interests, we discern facets to this case which cause us to pause and question the wisdom of allowing the Association to find sanctuary in the doctrine of immunity on the facts alleged in the complaint.
The objective and effect of instituting criminal contempt proceedings for the unauthorized practice of law against Dacey were to suppress a book.*fn7 The gravamen of the Association's complaint against Dacey was not that he had given specific advice to specific individuals concerning their particular legal problems. Instead, the Association acted to prevent Dacey from disseminating his views to the public generally by means of the publication and distribution of a book. Moreover, the book at which the attack was directed contained a critical discussion of an important public institution -- the probate court -- and of the officials who administer it and practice before it.
The first amendment embodies "a profound national commitment to the principle that debate on public issues [such as the performance of the probate court system] should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). The value of Dacey's views is not lessened because they were presented principally in the form of quotations and anecdotes. Judging from the wide circulation which the book received, this format was extremely effective. Nor does it matter that the opinions expressed were contained in a book comprised largely of legal forms. The argument Dacey sought to press upon the public -- the virtue of which we do not pass upon -- was that the infirmities of the probate system required every thoughtful person to avoid the administration of his estate by the probate court. Given this viewpoint, the forms which comprised the bulk of How To Avoid Probate ! buttressed Dacey's argument that the goal he advocated was not only desirable but feasible. Dacey's book was therefore protected by the first amendment's guarantee of free speech and any attempt to suppress it on the ground that it constituted the unauthorized practice of law must be scrutinized with extreme care. This is not to say, however, that the inhibiting effect of the Association's action on protected speech is dispositive of the issue before us. An overzealous public prosecutor may create an unjustified restraint on expression by bringing a completely unwarranted prosecution for obscenity and still be immune from damages in a civil action. Thus, although the restriction on freedom of expression induced by the Association's attempt to prevent the distribution of Dacey's book to the public does not completely resolve the question in this case, it is an important factor to be weighed in the balance.*fn8 And, it provides a context within which the actions of the Association must be viewed.*fn9
Dacey urges that the intended result of the Association's action was to eliminate an actual or potential competitor of its members. In initiating unauthorized practice proceedings, he argues, the members of the Association were directly serving their own pecuniary interest in a manner in which a public prosecutor who begins a case or a judge who decides it is not. We need not pass judgment on the merits of these contentions. We merely note the inevitable presence of a possible conflict of interest between the purposes served by the Association and its conception of the public interest whenever it exercises its statutory power to initiate contempt proceedings under § 750, subd. B and secures an injunction against the sale and distribution of a book critical of the profession.
Finally, we note that at the summary hearing held before the New York Supreme Court in April 1967, only argument of counsel was heard; there was no inquiry into the facts, nor was any evidence presented that Dacey's book had misled anyone.*fn10
For all of these reasons, we conclude that it would be unwise to grant the Association immunity in this case. We do not suggest, however that immunity would be unavailable to the Association in a case in which it had sought to enjoin an unauthorized practitioner from proffering to specific individuals legal advice relating to their specific problems or had instituted proceedings to disbar an attorney.*fn11
Our decision on this appeal, however, does not rest on our disposition of the issue of immunity.
IV. Probable Cause
Just as the public's interest in having access to Dacey's criticism of the courts of probate prevents us from granting absolute immunity to the Association in this case, an equally strong public interest in preventing the unauthorized practice of law requires that the defense of "probable cause" to initiate a prosecution under § 750, subd. B be available to the Association. We believe that failure to afford the Association this defense might well preclude vigorous enforcement of the laws prohibiting unauthorized practice. In such event, the Association would be compelled to proceed with excessive timidity and restrict its prosecutions only to those cases in which the violation was clear beyond all doubt.
Accordingly, we agree with the conclusion of the district court that, as a matter of law, the Association had probable cause to initiate unauthorized practice proceedings against Dacey. The Association's request for a permanent injunction was granted by the New York Supreme Court and affirmed by the Appellate Division before Dacey ultimately prevailed in the Court of Appeals. The law is clear in this circuit that the "granting of a final injunction, despite reversal on appeal, is conclusive evidence of probable cause."*fn12 Salvage Process Corp. v. Acme Tank Cleaning Process Corp., 104 F.2d 105 (2d Cir.), cert. denied, 308 U.S. 599, 60 S. Ct. 131, 84 L. Ed. 501 (1939). The judgment of the district court is therefore affirmed.*fn13
WATERMAN, Circuit Judge (concurring):
I concur in affirming the dismissal of the complaint. I agree with my brother Kaufman and with the court below, Dacey v. New York County Lawyers' Association, 290 F. Supp. 835, 842 (D.C.1968) that the Association, as a matter of law, had probable cause to initiate unauthorized practice proceedings, and therefore that the dismissal of the action which is based upon the Civil Rights Act of 1871, 42 U.S.C. § 1983, was proper. In his concurring opinion my brother Moore also accepts this ground as a dispositive one.
I agree with Judge Kaufman that due respect for the First Amendment cautions us that it would be unwise to affirm the judgment below upon the added ground relied upon by the district court and by Judge Moore that in the circumstances here the Association is clothed with the immunity from suit enjoyed by New York State public prosecutors. It is clear that the objective of the Association in instituting its special proceedings in the New York courts against Dacey, a non-lawyer, was to suppress his book "How to Avoid Probate!" and to prevent the views expressed therein from being available to the general public.
I am unable to reconcile a desire to have "book burning" judicially approved because a non-lawyer's book contains derogatory remarks about our profession with the power to prosecute for unauthorized practice of the profession. Indeed, I heartily approve of this grant of power to the Association for it is necessary to repose it in those learned in the law if our profession is to preserve its great ideals through membership therein of none other than those indviduals qualified by learning and training to render personalized legal professional service. Non-lawyers should not be permitted to render that service.
MOORE, Circuit Judge (concurring in the result):
Although I concur in the affirmance of the judgment dismissing the complaint, my reasons for so doing are quite different from those expressed in the majority opinion. Initially I find here no issue of "restraint on a citizen's right to disseminate his views on important public issues * * *." Upon this appeal the only issue before us is: does the amended complaint on its face state a cause of action? Nor is there any issue as to whether Dacey's acts constitute the unlawful practice of law. That issue has been laid at rest by the New York Court of Appeals. No judge is being sued -- hence, judicial immunity is not involved. The issues of free speech and the suppression of a book or of Dacey's "views to the public generally by the means of the publication and distribution of a book" are not before us. The only question stated more extensively is: is the Association upon the facts alleged in the amended complaint immune from actionable suit by Dacey for having proceeded (ultimately unsuccessfully) against him for the unauthorized practice of law?
No answer has been interposed. No "defense" of immunity has been pleaded. Therefore the failure to state a claim must be found in the nature of the suit itself -- in effect, the disclosure of facts from which a built-in immunity may be derived. The decisions leave no doubt that such immunity may be presented upon the motion to dismiss.*fn1
Looking at the amended complaint itself, despite Dacey's allegations that the Association's proceedings "were undertaken by defendant solely for the purpose of preventing the plaintiff from criticizing and speaking out in opposition to the practices of certain lawyers, judges and courts whose management of decedents' estates was improper" and to prevent the sale of his book, the amended complaint adequately discloses that the Association sought to and did for a period of time enjoin Dacey from the unauthorized practice of law. The motives, the purposes, the conspiracy and the malice allegedly may all be assumed. In fact it is into these very motives and purposes that Dacey would seek to probe upon a trial. And it is for this very reason that the courts so uniformly have erected a barrier for the public good against such a happening.
Whence is derived this immunity claim by the Association? The Legislature has seen fit to grant the right to institute a proceeding against unlawful practice to court, other officer or any bar association. The means whereby such an association may proceed are pointed out by the court below, i.e., (1) by criminal prosecution; (2) by a civil action under Judicial Law § 476-a; and (3) by summary proceedings under § 750, subd. B. Where as here the relevant facts are undisputed, namely, the proceedings themselves, the § 750, subd. B approach was warranted. Dacey argues that § 476-a should have been used so that the Attorney General could have decided whether in his opinion the complaint was well founded and whether a proceeding should be commenced; and that only by this procedure could immunity under § 476-b be achieved. However, the immunity section was added to § 476 merely to eliminate the potential liability against which a bond was required in the event that a temporary restraining order was desired. As the Attorney General at the time (1958) stated in his memorandum to the Legislature, "in prosecuting such [unauthorized practice] actions bar associations are therefore performing the same public functions as the Attorney General or any other public law enforcement official. * * * It is only just and proper that when a bar association functions as a law enforcement agency, under statutory authority, it should enjoy the same immunity from liability for costs and damages as that extended elsewhere in the law to public officials performing the same duties." (New York State Leg. Annual 1958, p. 11.) Since the Legislature has equated bar associations with courts and prosecuting officers, the law applicable to them should be equally applicable to the Association here.
The Association in previous proceedings has been recognized in its prosecutorial role. In re Bercu, 273 App.Div. 524, 78 N.Y.S.2d 209 (1st Dept.1948), aff'd 299 N.Y. 728, 87 N.E.2d 451; In re Roel, 3 N.Y.2d 224, 165 N.Y.S.2d 31, 144 N.E.2d 24 (1957), app. dism. 355 U.S. 604, 78 S. Ct. 535, 2 L. Ed. 2d 524 (1958). Dacey's fear of the Association acting as a vigilante committee cannot be reconciled with the vigilante concept which normally embraces the thought of apprehension, trial and execution of judgment, all by the vigilantes. In marked contrast, Dacey has been afforded every step of due process in the courts. The cases, therefore, involving police officers have no bearing as precedential value on the decision here.*fn2
What Dacey desires is "his day in court to test the motives of the defendant-appellee [the Association] in using the procedure it chose, on such a novel issue before a hostile court."*fn3 (Dacey brief p. 13.) But this "day" (if he wishes to test the motives of the committee or the members of the largest local bar association in the United States, the "day" could become weeks or months) in court is exactly what the courts have decided is not in the public interest.
A few sentences from decisions, in which the courts have had to cope with arguments similar to those now advanced by Dacey, will suffice as a guide to the correct result here. The recognition of a common law immunity for judges from tort actions was made by the United States Supreme Court in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L. Ed. 646 (1871). Justice Field's opinion justifies the privilege in terms of freedom from "vexatious litigation" and "apprehension of personal liability" that would hamper judges in the discharge of their judicial functions. The immunity was described as being
"not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences." 80 U.S. (13 Wall.) at 350, quoting from Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868).
In Spalding v. Vilas, 161 U.S. 483, 16 S. Ct. 631, 40 L. Ed. 780 (1896), the Court granted a similar absolute privilege to the Postmaster General in a defamation action.
The Second Circuit has long recognized the need to extend the immunity granted to judicial officers to public prosecutors.*fn4 In Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926), aff'd per curiam 275 U.S. 503, 48 S. Ct. 155, 72 L. Ed. 395 (1927), a Special Assistant to the Attorney General, who had been appointed to prosecute the plaintiff, was alleged to have prosecuted an indictment maliciously and without probable cause. This Court held that:
"[A] special assistant to the Attorney General of the United States, in the performance of the duties imposed upon him by law, is immune from a civil action for malicious prosecution based on an indictment and prosecution, although it results in a verdict of not guilty rendered by a jury. The immunity is absolute, and is grounded on principles of public policy. The public interest requires that persons occupying such important positions and so closely identified with the judicial departments of the government should speak and act freely and fearlessly in the discharge of their important official functions. They should be no more liable to private suits for what they say and do in the discharge of their duties than are the judges and jurors, to say nothing of the witnesses who testify in a case." 12 F.2d at 406.
In the front rank of cases establishing an immunity from common law actions for malicious prosecution is Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied 339 U.S. 949, 70 S. Ct. 803, 94 L. Ed. 1363 (1950). In dismissing this suit against two successive Attorneys-General of the United States, two successive Directors of the Enemy Alien Control Unit of the Department of Justice, and the District Director of Immigration at Ellis Island, Chief Judge Learned Hand stated:
"* * * to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties." 177 F.2d at 581.
The justification given for immunity involved a balancing of the evils that were inevitable in either alternative. This balancing revealed that it was:
"better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation." 177 F.2d at 581.
Where a court-appointed commission of two doctors is authorized by statute, immunity has been extended to them even though the plaintiff in his suit had alleged that by the defendants' intentional actions he had been illegally committed and that, therefore, he was entitled to damages under the civil rights laws. The Seventh Circuit said:
"Drs. Fein and Imbiorski as members of the court-appointed statutory commission share the court's judicial immunity, and in the performance of their quasi-judicial functions are not subject to suit under the sections of the statute here involved." Byrne v. Kysar, 347 F.2d 734, 736 (1965), cert. denied 383 U.S. 913, 86 S. Ct. 902, 15 L. Ed. 2d 668 (1966).
The entire purpose of immunity would be defeated if an allegedly aggrieved plaintiff by charges of malice and selfinterest by a bar association could subject its members, or a committee thereof, to a trial in an endeavor to probe into such motives. In Gregoire the Court stated:
"It can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment's reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him." 177 F.2d at 581.
Even though these common law immunities are called "absolute," there have always been limitations placed upon them. Common formulations of that limitation have included the requirement that "the official's act must have been within the scope of his powers," Gregoire, supra, and that "a distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject matter," Bradley, supra, 80 U.S. (13 Wall.) at 351. Thus, any limitation must be understood in terms of the scope of the official's duties, and not in terms of either any malice which might have motivated the official or any lack of probable cause which might have justified the action. But here there is no question that the action of the Association was within the scope of the powers bestowed by § 750, subd. B of the Judiciary Law. Mr. Justice Frankfurter answered Dacey's present argument, seeking to obtain a trial, in Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951) wherein he said:
"The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. * * The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives" (377, 341 U.S. 367, 71 S. Ct. at 788, 95 L. Ed. 1019).
In the Tenney case, a committee of the legislature had acted but here statutory authority has been expressly bestowed upon bar associations. Thus the admonition in Tenney is applicable, namely:
"The courts should not go beyond the narrow confines of determining that a committee's inquiry may fairly be deemed within its province" (341 U.S. 367, 71 S. Ct. at 789, 95 L. Ed. 1019).
Nor can any legal distinction be derived from the difference between action by an integrated bar and the statutorily authorized Association. Therefore the grant of immunity against a suit by a disbarred attorney is most relevant here.*fn5 As to such a suit under civil rights laws, the Ninth Circuit said:
"As an arm of the Washington Supreme Court in connection with disciplinary proceedings, the Bar Association is an 'integral part of the judicial process' and is therefore entitled to the same immunity which is afforded to prosecuting attorneys in that state." Clark v. State of Washington, 366 F.2d 678, 681 (9th Cir. 1966).
Thus, in my opinion, the decisions support the syllogism that (1) the judiciary is immune from liability for damage claims brought under § 1983, (2) public prosecutors are quasi-judicial officials, (3) the Association is performing the same role as a public prosecutor here, therefore, (4) the Association is immune in this case upon the facts as pleaded.
The District Court, therefore, correctly granted absolute immunity because "the Association when it acts under Judiciary Law § 750, subd. B is a part of the judicial process." 290 F. Supp. 841-842 (S.D.N.Y.1968). This conclusion is uniformly supported by the decisions of the New York courts and the United States Supreme Court.
In view of the nature of the narrow issue before us, I must take issue with that portion of the majority's opinion entitled "III. The Prosecutorial Role of the Association," first, because it does not reflect the existing pertinent law and, second, because in my opinion it is entirely irrelevant to the only question before us. The law as to immunity as thus far written does not depend upon a finding by an appellate court that it would be "unwise to grant the Association immunity in this case" or because its concept of the public's interest "prevents [it] from granting absolute immunity to the Association in this case." Such a hypothetical situation is not before us. Nor should we give advisory opinions as to such future situations as may arise with respect to the giving of unauthorized advice to "specific individuals." Furthermore, the hypothesis that "an overzealous public prosecutor may create an unjustified restraint on expression by bringing a completely unwarranted prosecution for obscenity and still be immune from damages in a civil action" is no justification for lessening the immunity privilege. I find no relationship between the public policy involved in granting to the Association the power to protect against the unauthorized practice of the law and any inhibition of free speech.*fn6 And I do not accept "the inevitable presence of a possible conflict of interest between the purposes served by the Association and its conception of the public interest whenever it exercises its statutory power to initiate contempt proceedings under § 750, subd. B." Nor are wrongfulness or malice determining factors because allegedly wrongful acts were present in the analogous complaints dismissed for failure to state a claim. Thus I would hold that the Association upon the facts pleaded in the amended complaint is entitled to absolute immunity from Dacey's suit.
Since, however, the law in this Circuit is that the "granting of a final injunction, despite reversal on appeal, is conclusive evidence of probable cause," Salvage Process Corp. v. Acme Tank Cleaning Process Corp., 104 F.2d 105, cert. denied 308 U.S. 599, 60 S. Ct. 131, 84 L. Ed. 501 (1939), and since this fact appears in the amended complaint, I accept this ground for dismissal of the amended complaint despite my belief that there is inconsistency in denominating "probable cause" a "defense" on a motion to dismiss for failure to state a claim.
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After Andy Reid was fired by the Eagles, the idea of a head coach holding power of personnel decisions was supposed to have been abolished. Jeffrey Lurie named Howie Roseman GM, and hired offensive genius, and successful college coach Chip Kelly as Reid's successor. It was assumed that Kelly would on handle the X's and O's, but according to Pro Football Talk, Kelly also has final say on who makes his roster. Asked Tuesday if he had final say on the 53-man roster which will be carved out this weekend, Kelly's answer was clear. "Yeah," he replied, via Geoff Mosher of CSNPhilly.com. Kelly made it clear that even though he's the coach with final say on his roster, and Roseman is the GM paid to select the roster, there's no conflict between the rookie head coach and GM. "There hasn't been a decision that's been made personnel-wise since I've been here where I've felt [one] way and he's felt the other way," Kelly said. "No, I'm not amazed that it has been [smooth]. If you analyze it, there's never been a situation when we've been going from, 'It's this guy or that guy,' and then two guys are standing on soap boxes saying 'We're going one direction, not the other direction.' "I think when you have guys that are professional and can see the other side of it and understand how it fits in the grand scheme of things, I think he sees the big picture. I see the big picture. So I think that's why we get along so well."
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The Meaning of BBQ
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The most popular meaning of BBQ is: Better Be Quick
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ZANZIBAR Luxury and privacy on a pristine beach !
From $531 / night
Description from the owner
Description from the owner
Bedrooms: 4/
Bathrooms: 4/
Sleeps: 8/
Type: Villa
Book this 4 bedroom, 4 bathroom villa in Matemwe today! A total of 8 people can sleep here comfortably.
Guests can enjoy a pool, deck, and outdoor grill among other amenities offered by this rental.
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Proximity to TripAdvisor's Top Matemwe Attractions
Proximity to TripAdvisor's Top Matemwe Attractions
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Video: Can the no-huddle offense stick?
The Packers had some success with the no-huddle offense against Cleveland and Arizona. When the No. 1 unit struggled, a fast tempo got things moving.
Do you guys think it should be used regularly when the games matter?
Latest Packers Blog Posts
- Familiarity brought Starks back to Green Bay
- Video: Breaking down Saturday's Packers practice
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- Packers WRs learning Getsy's way of doing things
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Oscilloscope Laboratories has acquired U.S. rights to Italian director Matteo Garrone's REALITY, a film in the Cannes main competition about a Neapolitan fishmonger whose life is turned upside-down when he thinks he's going to appear on a reality-television show. The film went on to win the Grand Prix award at the Festival and generated a good amount of controversy once it was learned that its lead Aniello Arena is a convicted felon who is serving a life sentence for murder. Apparently, the untrained actor was allowed to film during the day provided he returned to his prison cell each evening. While there was buzz that he would be allowed to walk the red carpet or attend the award ceremonies, that never materialized. In a release announcing the acquisition, Oscilloscope's David Laub called the film "a complex, provocative, and deeply compelling look at our media-obsessed culture, executed by one of the most interesting and talented filmmakers working today. Garrone pays homage to classical filmmakers such as Fellini and Scorsese while crafting a fresh and very relevant contemporary story." The director's previous film GOMORRAH (2008), a blistering drama of the continuing influence of the Mafia in the social fabric of Italy's southern provinces, was a major international arthouse hit. Oscilloscope plans to showcase the new film at additional festivals throughout the fall, and to follow with a theatrical, DVD and digital release in 2013.
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Before you dive into this interesting story about Microsoft CEO Steve Ballmer, please be aware that there is some crude language that might not necessarily be suitable for all audiences.
If you're still with us, you're about to hear about one of Ballmer's more entertaining moments in the technology industry. Anything this guy does is hilarious.
Pop culture magazine Vanity Fair has detailed some interesting comments made by Ballmer regarding former Google CEO Eric Schmidt, and they truly reveal the bold and sometimes heated personality that the Microsoft CEO has.
Everyone already knows that Ballmer is quite the character, but the remarks he made are still quite surprising. In 2004, after hurling a chair, here is what Ballmer told an engineer that was leaving for Google:
"Fucking Eric Schmidt is a fucking pussy!" Ballmer yelled, according to the court document. "I'm going to fucking bury that guy! I have done it before and I will do it again. I'm going to fucking kill Google."
Unfortunately for Ballmer, Google has grown into one of the most successful technology companies worldwide, centered upon its search engine, Android software and myriad of other Internet services that it provides. Microsoft, on the other hand, is only just beginning to emerge from some rather dark days — Windows Vista and the infamous Zune are just two examples — with the upcoming release of Windows 8 for PCs, Windows Phone 8 for smartphones and its Microsoft Surface tablet.
Perhaps this is a contributing reason as to why Forbes has recently declared Steve Ballmer as the worst CEO currently in charge, noting more specifically that he is the "worst CEO of a large publicly traded American company today." Yes, even worse than the chief executives of Wal-Mart, Sears, Cisco and General Electric. But if you thought these comments by Ballmer were funny, watch him going crazy on stage.


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IPC-D-330 1992 Edition, April 1, 1992
Complete Document
Design Guide Manual
Additional Comments: S/S BY IPC-2221 & IPC-7351 NO LONGER AVAIL
Published By:Association Connecting Electronics Industries (IPC)
Page Count:645
Print :
The purpose of the IPC Design Guide is to make information available to users and designers of rigid and flexible printed boards as well as hybrid and multichip modules. This documents contains a compilation of valuable and useful data pertinent to the problems encountered in the application of design principles.
The scope of this document is broad. We refer you to the comprehensive Table of Contents which indicates the extent of data to be included in the Design Guide.


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55 Rice Lane Edisto Beach Sc 29438 MLS# 2817659
2817659 - Residential - real estate
Edisto Beach, SC
Fantastic views of the 13th fairway & lagoon from this 3 bedroom 2.5 bath furnished resort home! Spacious open floor plan with custom features including 2 story tongue and groove ceilings, hardwood & ceramic tile flooring, slate stone hearth, 2 stop elevator, corian countertops, hurricane shutters for all windows & glass doors, ample storage space and more! The master bedroom suite is spacious and features a large bathroom with double sink vanity and walk-in stone shower. Relax on the large covered porch (30'X12') and sundeck (20'X12') overlooking the golfer's play on the 13th fairway; perfect setting for entertaining! Bike along paved bike paths to ocean or ride in golf cart included in sale! Enjoy the resort's owners-only beachfront cabana or take a dip in one of the three pools. Within walking distance to pro shop and two restaurants. Take advantage of some of Edisto's other outdoor activities including nature tours, fishing charters, beach combing, golfing and a little something for everyone. Take a day trip to historic Charleston, just 45 minutes north of Edisto. All porches & decks (including handrails, etc) painted or stained in May 2009.
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Having unwanted fat in different locations of your body can have a significant effect on your health and self-esteem. While conventional weight loss through exercise and diet plan is a terrific method to lose weight in general, even the very best workouts cannot target problem locations like the belly, inner thighs, arms, and butts. Liposuction is a time evaluated treatment that is used to eliminate excess fat from particular areas of the body, permitting a specific to shape and contour their body to their preference. Is liposuction right for you? Find out now.
Pros of Liposuction
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New York, NY 10065
As the Director of the Multiple Myeloma Center at New York Presbyterian Hospital-Cornell Medical Center, my duties will focus on providing outstanding clinical care and coordinating a world class clinical translational research program. Prestigious investigators have joined forces to create one of the leading centers for myeloma research. I have no doubt that this cooperative effort forms one of the best myeloma research groups on the World. My 25 years of experience as a myeloma physician has helped me to appreciate how important it is to treat patients in the context of a comprehensive and individualized program. New York Presbyterian Hospital has an outstanding Bone Marrow Transplant Service (a treatment modality often used for myeloma patients), performing more than 100 transplants per year. It has also been rated the best in the world in the fields of cardiology (heart), neurosurgery and nephrology (kidney). The Hospital for Special Surgery, also part of the New York Presbyterian-Weill Cornell system, has an outstanding group of orthopedic surgeons that support a new comprehensive bone disease program. In addition, as part of our continuing search for more effective therapeutic options, we offer multiple clinical trials utilizing promising new drugs and medical procedures for treating myeloma and related hematological disorders. The ultimate goal is to find the cure for multiple myeloma. The establishment of a free standing Multiple Myeloma Center at New York Presbyterian Hospital Weill Cornell Medical Center is an important step towards the accomplishment of this goal.Read more
For the best healthcare for your needs, choose a doctor who specializes in your medical condition.
Check to see that this provider treats your medical condition.
Check to see that this provider performs the procedure that you need.
Check to see if your provider has any malpractices, board actions, or sanctions.
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Likelihood of recommending Dr. Niesvizky to family and friends is 3.7 out of 5
Check out the quality of care at the 1 hospitals where Dr. Niesvizky has admitting privileges.
Hematology & Oncology Specialist
Hematology Specialist


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|About Us
How to Invest in America's Largest Oil-Producing RegionBy Brian Weepie, analyst, Stansberry Research Resource Report
Wednesday, September 3, 2014
In April, I told you about the "shift" taking place in U.S. oil production.
In short, over the past few years, oil production has been dropping in some of the top U.S. oil-producing areas – like the Gulf of Mexico, Alaska, and California. These areas used to produce nearly half of all U.S. oil. Today, they produce less than one-third.
Meanwhile, crude-oil production in Texas and North Dakota has been steadily increasing – thanks to new technologies like fracking and horizontal drilling that allow the U.S. to tap into incredible oil and gas reserves in shale areas.
Because of this technology, West Texas' Permian Basin is now America's largest oil-producing area. But the region still holds enormous potential for producers and investors...
Longtime Growth Stock Wire readers know about the Permian Basin. Located in West Texas, it runs about 300 miles long and 250 miles wide. Because of the large oil and gas reserves in the region, some of the biggest oil producers in the world have set up shop in the area over the past few years.
And in 2013, oil production from the Permian Basin exceeded oil production from the Gulf of Mexico – making the Permian the largest oil-producing region in the U.S.
And production is still growing.
According to the Energy Information Administration (EIA), the Permian Basin will produce 1.72 million barrels of oil per day in September. For comparison, the Permian Basin produced just 1.29 million barrels of oil per day last October. That's a 33% increase in a year.
Part of the reason for the increase comes from an increase in the number of rigs drilling for oil in the Permian. But more importantly, production from each new well drilled has risen for the past few years. In 2011, the average new well produced about 100 barrels of oil per day. Today, each new well produces 165 barrels per day.
So, in addition to having more rigs in operation, each new well is yielding 65% more oil than it was three years ago. And the soaring production shows no sign of stopping.
Because the process of extracting oil from shale is just a few years old, we don't know the limits of shale yet. While many producers in the area have already seen their production – and share prices – soar, there's still plenty of upside potential. As my colleague Matt Badiali told you in June, oil companies in the area are continuing to find innovative ways to extract oil and gas more efficiently. So companies with lots of assets in the Permian Basin will continue to increase in value.
The table below shows the three largest producers in the area. It also shows their annual sales and their total enterprise value-to-EBITDA (earnings before interest, taxes, depreciation, and amortization) – a valuation metric.
We hold Apache Corp. in the S&A Resource Report portfolio. The company has re-focused its production efforts on North America by recently selling assets in the Gulf of Mexico, Canada, Argentina, and Egypt. Meanwhile, Apache's production in the Permian has increased for 14 quarters in a row. The stock is up more than 40% in the past two years, but it's still cheaper than its peers with a total enterprise value-to-EBITDA of 4.7.
If you're not already invested in the U.S. shale-oil boom, I recommend looking into Apache Corp. today. As production in the Permian Basin continues to increase, so will Apache's share price.
Good investing,
Brian Weepie
Further Reading:
Find more of our latest research on the U.S. energy boom – and how to invest – here:
How Iraq Will Help Push U.S. Oil Stocks Higher
While U.S. oil production is soaring, that's not the case with the rest of the world. And more oil demand than supply will be great for U.S. oil stocks...
How to Invest With One of the World's Smartest Oil Tycoons
This company is expected to grow its production "by roughly 30% next year."
This Oil Expert's Favorite Stock Has Huge Upside Potential
"There are no signs of this growth stopping as the company continues to find more reserves."
Chinese stocks are breaking out... country fund FXI is up 15%-plus over the past four months.
Warren Buffett's Berkshire Hathaway touches a new 52-week high.
Social-media craze continues... Facebook and Twitter climb 50%-plus over the past 10 months.
"Offense" contractors Northrop Grumman and Lockheed Martin are up more than 40% over the past year.


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CHIEFLAND - Hideaway Park, off CR 320, 11013 NW 114th St.Dec 10-12, Sat, Sun, & Mon. 8am-2pm. Old Clocks & Lots of stuff
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CHIEFLAND - Hideaway Park, off CR 320, 11013 NW 114th St.Dec 10-12, Sat, Sun, & Mon. 8am-2pm. Old Clocks & Lots of stuff
CHIEFLAND - Multi-Family yardsale. Fri & Sat 8am-3pm. Something for everyone. Gator Stuff, collectibles. Christmas decorations, kitchenware, toys, furniture, wicker patio furniture, bar stools, BB guns, bed rails, to much to list. 225 SE 3rd St off Park Ave, 3 blocks behind Stefinelli Ins.
Chiefland- 3 Family yardsale Sat & Sun 8am-4pm to much to list. 6850 NW 70th St. Chiefland.
Christmas Yard Sale- Old Town Dec. 9-10. 9am-?. GMC 4 wheel drive Jimmy. Christmas decorations, plus size clothes 2x-5x, nurses scrubs, Apple iPad household misc. New western fashion jewelry. Come have a hot dog and iced tea 374 NE 612th St. off of Spillers HWY. 352-542-8751
Dec 7-11 Wed-Sun 8am-5pm Christmas lights and decorations, women's clothes. Sienna Cove 11571 NW 68th Ter (yellow house)
EBAY SELLER- clearing out. Household goods, collectibles, Golf Cart, tools RC Car. Sat Dec 10, 8am-2pm. 213 NE 9th Ter across the street from Sav a lot
HERRYS MARKET DAY FREE VENDOR & COMMUNITY SPACE Sell Your Treasures! Held on the grounds of Hospice Thrift & Gift Shoppe 304 N. Main St., Chiefland 2nd Saturday Every Month Starting at 8 a.m. SATURDAY, December 10 Call 352-493-0753
INSIDE SALE @ Carol's Thrifty Corner. 2 blks behind Savealot in Cross City. Open Wed-Sat 11-6. 352-210-0102 or 288 SE 22nd Ave.


text: Retail Theft Investigated Skook News 12:55 PM News , Police Log Edit The Rush Township Police Department is investigating a retail theft that occurred on January 14th, 2016. The theft took place at the Hometown Wal-Mart near Tamaqua around 6:00pm. Anyone with information that can identify the suspect, please contact Rush Township Police at (570) 668-4242. All tips will remain confidential. Share on Facebook Share on Twitter Share on Google Plus About Skook News This is a short description in the author block about the author. You edit it by entering text in the "Biographical Info" field in the user admin panel. RELATED POSTS


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The University of Wrocław in Poland is hosting a conference on "Law, Space, and the Political" on September 3 to 5, 2015. The deadline for submissions of paper abstracts is June 30. Cribbing now from their call for papers:
In September 2015, for the first time in its history, the Critical Legal Conference will symbolically cross the frontier of the former 'Iron Curtain' and take place in Poland, a country of the former Soviet bloc. This will happen quarter of a century following the region's political and socio-economic transformation from 'actually existing socialism' to a mix of political democracy with neoliberally flavoured capitalism. CLC 2015 will be hosted by the University of Wrocław Faculty of Law, Administration and Economics in the region of Lower Silesia in south-western Poland.
For this year's Critical Legal Conference – the first one ever to be held in Central and Eastern Europe – we invited stream organisers to reflect upon the complex relationship between law, space and the political, encouraging a broad understanding of those three notions. Looking from our Central European perspective, we have a special interest in the centre/peripheries dialectic, and the interrelationship between economic and political peripherality on the one hand, and various cultural transfers on the other, with particular reference to legal transfers (encompassing both specific legal institutions, as well as 'units' of legal culture, such as legal theories, concepts and doctrines). On the other hand, we invite reflections on the role of law in forging and upholding the centre/periphery dynamic, both in Europe and in the world.


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submitted: May 8, 1986.
COMMONWEALTH OF PENNSYLVANIAv.MICHAEL UPCHURCH, APPELLANT
Appeal from the Judgment of Sentence September 11, 1984 in the Court of Common Pleas of Philadelphia County, Criminal No. 634-638 September 1983.
Martin W. Bashoff, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wieand, Olszewski and Beck, JJ. Wieand, J., concurs in the result.
[ 355 Pa. Super. Page 430]
The appellant, the first of three, appeals the result of sentencing from the crimes of criminal conspiracy, possessing an instrument of crime, robbery and murder, second degree, for which he was found guilty by a jury. This appeal raises numerous issues, which, after a careful review, we reject. All appellant's allegations, however, will be addressed seriatim.
The facts, as taken from the trial court, reveal the following. On Saturday, July 9, 1983, at approximately 2:00 a.m., seventeen-year-old Thomas Murphy was shot while riding his ten-speed bicycle in the 7200 block of Woodland Avenue in West Philadelphia. In an effort to avoid his attackers, Murphy continued to pedal his bike crossing the city line into Darby, Delaware County. At a distance of approximately 900 feet from the point of attack, Murphy crashed into a parked car and collapsed to the ground. Cynthia Leonard observed the victim as he rode past her apartment building on Main Street in Darby. Leonard ran over to Murphy when he crashed into the car and observed two bullet holes in his body. Leonard also heard Murphy state, "A Nigger shot me." (N.T. 306, 1-10-84).
Murphy was rushed to Fitzgerald Mercy Hospital where he was pronounced dead approximately three hours after the attack. An autopsy performed by the Delaware County Medical Examiner, Dr. Dimitri Contostavlos, on July 9, 1983, revealed the cause of death to be loss of blood due to two gunshot wounds to the trunk. The manner of death was ruled a homicide.
At trial, the Commonwealth's evidence established that at approximately 2:00 a.m. on July 9, 1983, Thomas Murphy left the house of his girlfriend, Colleen Doogan, located in the 6100 block of Wheeler Street, and began to pedal home on his bicycle. (N.T. 302-303, 1-10-84). At approximately the same time, the defendants Joseph Council, Michael Upchurch and Michael Johnson, along with one Mary Alice Smith, were exiting the Birthday Bar located at 7250 Woodland Avenue. (N.T. 231-233, 1-10-84). Upon observing
[ 355 Pa. Super. Page 431]
Murphy on the bicycle, defendant Council stated, "Here comes a white boy. Let's get him." (N.T. 205, 337, 1-10-84). Shortly after these words were uttered, defendant Upchurch pulled out a revolver and fired two shots at Murphy, striking him in the chest and in the back. (N.T. 425, 1-11-84). As the victim continued to ride away, all three defendants, as well as Mary Alice Smith, fled the scene.
Acting on information supplied by Smith, the police obtained arrest warrants for the defendants. Michael Johnson and Joseph Council were arrested on July 22, 1983. Michael Upchurch was apprehended on the following day, July 23, 1983.
Defendant Upchurch was charged under September Term, 1983: no. 634 criminal conspiracy; no. 635 possession of an instrument of crime, generally; no. 636 robbery; no. 637 involuntary manslaughter; and no. 638 murder, voluntary manslaughter. The bills charging involuntary manslaughter were subsequently nolle prossed as to all three defendants.
On January 4, 1984, the defendants' motion to suppress an arrest and oral and written statements were heard with the Hon. Albert F. Sabo presiding. On that same date, the defendants' motions were denied.
On January 9, 1984, upon being arraigned, defendants pleaded not guilty as to all bills. The jury, having been duly impanelled, was sworn and/or affirmed and the trial proceeded before the Hon. Albert F. Sabo. As to defendant Upchurch, the jury returned a verdict of guilty, murder in the second degree; guilty, robbery; guilty, criminal conspiracy; and guilty, possession of an instrument of crime. Sentencing was deferred pending the disposition of post-trial motions. Presentence investigations and psychiatric evaluations were ordered. Defendant Upchurch was sentenced on bill no. 638 to life imprisonment at the State Correctional Institution at Graterford; on bill no. 634 to not less than five nor more than ten years to run consecutive to
[ 355 Pa. Super. Page 432]
bill no. 638; on bill no. 635 to not less than two and one-half nor more than five years to run consecutive to bill no. 634; and bill no. 636 merged with bill no. 638 for sentencing purposes. Upchurch was also assessed $15.00 towards the Victim's Compensation Fund.
Appellant's first issue deals with the court's denial of his motion to suppress his confession. He alleges that during questioning, he was interviewed by two different police personnel, Detective Dougherty at first and then Officer Riley. He was advised of his Miranda rights by Detective Dougherty (N.T. 198-199). Appellant contends now that he should also have been mirandized before speaking with Officer Riley, to whom he gave the statement he wants suppressed. We disagree.
The appellant correctly sets out the criteria to be evaluated in reviewing this issue as: (1) the time lapse between the last Miranda warnings and the appellant's statement; (2) interruptions in the continuity of the interrogation; (3) whether there was a change of location between the place where the last Miranda warnings were given and the place where the appellant's statement was made; (4) whether the same officer who gave the warnings also conducted the interrogation resulting in the appellant's statement; and (5) whether the statement elicited during the complained-of interrogation differed significantly from other statements which had been preceded by Miranda warnings. Commonwealth v. Ferguson, 444 Pa. 478, 282 A.2d 378 (1971).
The time difference here was four and one-half hours and the move was between rooms of the same building. The detective was initially present when Officer Riley took over so there was a minimal break of continuity. In addition,
[ 355 Pa. Super. Page 433]
the second statement did not differ significantly from other statements but rather differed in degree of culpability. We therefore decline to find reversible error.*fn1
Next, appellant argues that a mistrial should have been declared after a Commonwealth witness testified about a polygraph test.*fn2
In Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971), the Pennsylvania Supreme Court held that any reference to a polygraph examination which raises an inference concerning either guilt or innocence of an accused is inadmissible. As such, our Courts have been reluctant to permit any reference to the polygraph to be made before the finder of fact, Commonwealth v. Miller, 497 Pa. 257, 439 A.2d 1167 (1982); Commonwealth v. Cunningham, 471 Pa. 577, 370 A.2d 1172 (1977), and will not allow a conviction to stand. See Commonwealth v. Johnson, 441 Pa. 237, 272 A.2d 467 (1971).
The comment by Officer Riley cannot be found prejudicial. It was not prompted by the question and was elicited in testimony regarding appellant's interview and not testimony concerning guilt or innocence. No results were indicated and it is not even clear that the test was given, merely that Officer Riley used a form also used by the Polygraph Unit. Given the form of the question and the attempt by the officer to rephrase her answer along with having it stricken by the court, we find no prejudice.
[ 355 Pa. Super. Page 434]
In order to be testimonially competent, a witness must have the ability to (1) perceive the event with a substantial degree of accuracy, (2) remember it, (3) communicate about it intelligibly, and (4) be mindful of his duty to tell the truth under oath.
A review reveals that the court examined Hackney's preliminary hearing testimony and medical reports. In addition, the court conducted an in camera colloquy in which it was determined that the witness knew the difference between right and wrong and the importance of telling the truth. (N.T. 316-324, 329). There was no abuse of discretion in allowing Hackney to testify.
With respect to the second part, the use of leading questions lies within the sound discretion of the trial court and a court's tolerance or intolerance of the leading questions will not be reversed absent an abuse of discretion. Commonwealth v. Bell, 328 Pa. Super. 35, 476 A.2d 439 (1984); Commonwealth v. Reidenbaugh, 282 Pa. Super. 300, 422 A.2d 1126 (1980).
In the present situation, the use of leading questions was discussed at side bar after a defense counsel objection. The court stated its reasons for allowing the questions and warned the prosecutor to stay within proper bounds and not to suggest an answer. (N.T. 355). Again, we cannot find an abuse of discretion to warrant appellant's desired relief.
Appellant's next issue also concerns testimony of Hackney. This issue contends that the lower court erred in allowing testimony that Hackney had never before testified in proceedings concerning this matter to stand uncorrected.
The record discloses that two police officers testified that Hackney appeared at the preliminary hearing. (N.T. 480, 716-718). In addition, defense counsel had the opportunity to impeach Hackney on this point by cross-examination and through the use of the preliminary hearing transcript. The jury, therefore, was aware of Hackney's previous court
[ 355 Pa. Super. Page 436]
appearance. As such, appellant's argument must be deemed meritless.
Our discussion now turns to pre-trial discovery. Appellant asserts that he should have received criminal extracts of all witnesses, ballistics reports, medical examiners' reports, statements made by the Hackney brothers and the information that the victim's shirt had been destroyed.
It is undisputed that the purpose of discovery is to insure a fair trial to all parties. The United States Supreme Court case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), set the gears in motion for defense rights to state information. Brady mandated that certain evidence in the hands of prosecutors be given to the accused. Specifically, a prosecutor must not suppress evidence favorable to the accused when the evidence is material to guilt or punishment. Brady 373 U.S. at 87, 83 S.Ct. at 1197. Since this decision, courts have struggled to comply with and interpret Brady.*fn4 In our review, we must keep in mind that questions involving pre-trial discovery in criminal cases lie generally within the discretion of the trial judge and his actions will not be reversed unless such discretion was abused. Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693 (1963).
We quickly dispose of the controversy surrounding the destroyed shirt. The Commonwealth states, and the trial court agreed, that the first time anyone knew anything about the shirt being destroyed was at trial. Since this information was not in the hands of the prosecutor, it could not be turned over to the defense.
A review of the record reveals that defense counsel was given a copy of the ballistics report during trial but in
[ 355 Pa. Super. Page 437]
advance of the expert testimony.*fn5 (N.T. 183-189). We do not know of any prejudice as a result of this late filing and none is alleged by appellant. Appellant's claim, therefore, must be denied.
With regard to the discovery of statements by the Hackney brothers, the lower court determined that some of the interviews were not reduced to writing and therefore were not discoverable. Those statements that were put in writing were in reference to another crime and not to their testimony; hence, they were not discoverable.
It is the decision of this Court that there were no pre-trial discovery violations and all of appellant's arguments are meritless.
We now address appellant's contentions relating to prosecutorial misconduct. This issue can be broken down into four subparts, each to be disposed of independently.
First, it is argued that the prosecutor's closing argument was improper by using terms such as "executioner" and making reference to "unsafe streets."
Initially, we note that the Commonwealth is allowed reasonable latitude in fairly presenting its version of the case to the jury. Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975). The court in Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873, further clarified this area in declaring:
But even where the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required. Commonwealth v. Crittenton, 326 Pa. 25, 31, 191 A. 358 (1937); Commonwealth v. McHugh, 187 Pa. Super. 568, 577, 145 A.2d 896 (1958).
[ 355 Pa. Super. Page 438]
The language must be such that its "unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict." Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). See also Commonwealth v. Myers [ Meyers ], 290 Pa. 573, 139 A. 374 (1927). The effect of such remarks depends upon the atmosphere of the trial, Commonwealth v. Dickerson, 406 Pa. 102, 110, 176 A.2d 421 (1962); Commonwealth v. Del Giorno, 303 Pa. 509, 519, 154 A. 786 (1931), and the proper action to be taken is within the discretion of the trial court. Commonwealth v. Silvis, 445 Pa. 235, 237, 284 A.2d 740 (1971); Commonwealth v. Simon, supra.
While we agree with the lower court that the comments made by the prosecutor were borderline improper, we do not agree with the appellant that they were so prejudicial as to make it impossible for the jury to render a true verdict.
Second, it is argued that the prosecutor should not have elicited testimony concerning alleged threats against Hackney and should not have misled the court to believe no deal had been struck with Hackney. We fail to see how appellant was harmed or prejudiced in any way. The only promise made to Hackney was a statement by the prosecutor at Hackney's sentencing that he did testify in the present case. This is not sufficient to infer that his testimony was forced or induced. See Commonwealth v. Bulovas, 301 Pa. Super. 55, 446 A.2d 1332 (1982).
Third, appellant contends the prosecutor introduced evidence concerning an unrelated weapon. Again, appellant does not allege any prejudice and harm. The jury was immediately told to disregard this testimony and all other references to a weapon were limited to the murder weapon -- a .22 caliber.
[ 355 Pa. Super. Page 439]
Appellant's sole argument is that since appellant suffered from hardening of the arteries, his will to resist may have been impaired. We affirm the lower court's decision that this issue was waived. See, Commonwealth v. DeLeon, 276 Pa. Super. 76, 419 A.2d 82 (1980).
Appellant avers that the lower court improperly removed from the jury's consideration the possibility of returning a voluntary manslaughter verdict by stating: "(I)n my opinion, under the facts and circumstances of this case, voluntary manslaughter would not be an appropriate verdict." (N.T. 875). Most importantly, however, was the judge's instructions that voluntary manslaughter was an allowable verdict (N.T. 859) and that the jury was free to ignore the court's opinion (N.T. 875). This conforms to our criteria in Commonwealth v. Cole, 274 Pa. Super. 106, 417 A.2d 1276 (1979):
When a defendant charged with murder requests a charge on voluntary manslaughter, the trial court may give its opinion on whether the facts show that the defendant committed voluntary manslaughter if the evidence supports the court's opinion, the court fully informs the jury of its power to return a verdict of guilty of voluntary manslaughter, regardless of whether the facts support that verdict, and if the court instructs that the jury is the finder of facts and is not bound to follow the court's opinion. Commonwealth v. Scaramuzzino, 485 Pa. 513, 403 A.2d 82 (1979) (plurality opinion) (citing cases).
The appellant's dispute with the voir dire is two-fold. First, he asks us to find error in the court's denial of a defense challenge for cause of Juror 77, Leonard Kaminski, and second, the denial of defense counsel's right to examine Juror 67, Dorothy Heebner, before granting the prosecutor's challenge for cause.
[ 355 Pa. Super. Page 441]
In a voir dire determination, it is important to consider the answers as well as the demeanor of potential jurors as observed by the trial judge. As such, reversal is appropriate only in circumstances of apparent error. See Commonwealth v. Johnson, 299 Pa. Super. 172, 445 A.2d 509 (1982). The Johnson Court also stated when a potential juror should be excused for cause:
A prospective juror should be excused for cause in two situations:
The first is where the prospective juror indicates by his answers that he will not be an impartial juror . . . . The second is where, irrespective of the answers given on voir dire, the court should presume the likelihood of prejudice on the part of the prospective juror because the juror has such a close relationship, be it familial, financial, or situational, with any of the parties, counsel, victims or witnesses. Commonwealth v. Stamm, 286 Pa. Superior Ct. 409, 429 A.2d 4, 7 (1981), quoting Commonwealth v. Colon, 223 Pa. Superior Ct. 202, 299 A.2d 326 (1972).
Juror No. 77, Leonard Kaminski, was extensively questioned on voir dire (N.T. 3.43-3.51). During that time he stated that although he had read about the crime, he could not remember all the facts and knew he could be fair and impartial. (N.T. 3.47). Furthermore, he positively stated that he could presume the three men innocent. Mr. Kaminski, therefore, does not fall with the first situation in which a juror should be excused for cause.*fn6 The court, then, did not abuse its discretion.
Similarly, we find no palpable abuse of discretion with respect to Juror 67, Dorothy Heebner. It is within the discretion of the trial court what questions will be asked, Commonwealth v. Hamm, 325 Pa. Super. 401, 473 A.2d 128 (1984) or if any questions will be asked by counsel. See Pa.R.Crim.P. 1106(d). Since the trial court had already made up its mind as to prejudice and the challenge for
[ 355 Pa. Super. Page 442]
cause, we would not require him to allow additional questions.
The final issue challenges the sufficiency of the evidence of the conviction on the robbery charge. The test for evaluating the sufficiency of the evidence in a criminal case is whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner and drawing all reasonable inferences therefrom upon which the jury could properly have based its verdict, there is sufficient evidence to enable the trier of fact to find beyond a reasonable doubt every element of the crime of which the appellant has been convicted. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976); Commonwealth v. Loar, 264 Pa. Super. 398, 399 A.2d 1110 (1979).
We find that this allows the conviction for robbery to stand. Appellant satisfied the elements of robbery as set out in 18 Pa.C.S.A. Sec. 3701(a)(1), (2) when he shot the victim in an attempt to take his bike. Therefore, appellant's argument is meritless. Judgment of sentence affirmed.
Judgment of sentence affirmed.
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May 28, 1982
Ruth KOW, on behalf of herself and all others similarly situated,
The NEW YORK CITY HOUSING AUTHORITY; Joseph Christian, as Chairman of the New York City Housing Authority; Blanca Cedeno, as a Member of the New York City Housing Authority; and Walter S. Fried, as a Member of the New York City Housing Authority
This action was brought by plaintiff on behalf of herself and others similarly situated to effect a retroactive rent decrease due to a change in her source of income from public assistance grants. Her application for class certification was denied because of lack of numerosity and also because this Court was of the view that the defendant public agency would accord to all persons in plaintiff's class the benefit of any judgment in her favor.
The action was settled by payment to plaintiff of $ 1,540 plus 3% interest from July 5, 1979 to the date of the execution of the stipulation itself. Plaintiff, who was represented by staff attorneys of The Legal Aid Society, now moves pursuant to 42 U.S.C., section 1988 for an allowance of counsel fees in the sum of.$ 11,021.35. The defendants oppose any allowance upon a claim that plaintiff was not a prevailing party because the action was settled and only provided a private benefit to the plaintiff. This contention is without merit. Maher v. Gagne, 448 U.S. 122, 129, 100 S. Ct. 2570, 2574, 65 L. Ed. 2d 653 (1980); Wheatley v. Ford, 679 F.2d 1037, 1040 (2d Cir. 1982); Milwe v. Cavuoto, 653 F.2d 80 (2d Cir. 1981); Zarcone v. Perry, 581 F.2d 1039, 1042 (2d Cir. 1978), cert. denied, 439 U.S. 1072, 99 S. Ct. 843, 59 L. Ed. 2d 38 (1979). To accept the defendants' position that counsel fees should be denied because the case was settled would deter attorneys and their clients from entering into settlements and force them to litigate through trial in order to receive just compensation for services rendered to which they may be entitled under 42 U.S.C., section 1988. Plaintiff, by way of settlement, achieved the result equal to what would have been realized had she prevailed upon a trial.
There is, however, substance to the City's further claim that the amount requested is excessive. Plaintiff's attorney is entitled to a fee for the services rendered, which must be fair and reasonable based upon the particular circumstances of the case. Colucci v. New York Times, 533 F. Supp. 1011, 1012 (S.D.N.Y.1982). The modest payment to plaintiff of $ 1,540 does not justify a fee in excess of $ 11,000. The settlement conferred no benefit upon anyone other than the plaintiff. It cannot be used to support the claim of any person similarly situated. The issues in the case were simple, and it is difficult to understand why two attorneys were required and why they expended a total of 107 hours-which based on an 8-hour day reflects a total of over 13 days-in a case which presented no complex or unusual issues. While our Court of Appeals has established the "lodestar" concept based on hours, Cohen v. West Haven Board of Police Commissioners, 638 F.2d 496, 505 (2d Cir. 1980); City of Detroit v. Grinnell Corp. (Grinnell I), 495 F.2d 448 (2d Cir. 1974), this Court has remained of the view that the factor of hours has been given undue emphasis in the consideration of fee allowances. Boe v. Colello, 447 F. Supp. 607, 610 (S.D.N.Y.1978). To make hours a principal criterion in the fixation of fees offers the prospect of rewarding the inefficient and penalizing the efficient. Moreover, our Court of Appeals "has repeatedly stressed the need to view such awards with an "eye to moderation' so as to avoid even the appearance of windfall fees." Wheatley v. Ford, 679 F.2d 1037, 1040 (2d Cir. 1982).
The Court, based upon its experience and also its familiarity with this matter, is of the view that competent qualified attorneys could adequately have represented the interests of the plaintiff by expending no more than 75 hours on the matter and that a fee allowance at the rate of $ 75 per hour is just and fair compensation. Accordingly, the application is granted to the extent of granting fees in the sum of $ 5,625. So ordered.
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